The Rule of Laws, page 40
What, then, were they for? In former times, as another of the mediators explained, the leading families in the area used to gather to discuss their laws. In this way, they probably standardized the principles on which mediators settled disputes. But the rules make the negotiation of compensation seem far more tidy and rule-bound than it can ever have been. And maybe that was the point. Life on the Tibetan grasslands was always unsettled, punctuated by raids, violence, cycles of feuding, and uncertain tribal loyalties as well as the interference of officials from central Tibet, or now, the state. Even if they were never directly applied, the neatness and order of these laws, setting out the principles on which compensation ought to be negotiated, created a sense of moral order. It was an order rooted in tribal autonomy, but morally linked to the legal and religious traditions of central Tibet. Carefully preserved, even under Chinese rule, the laws tell the tribesmen how life ought to be.
THE TIBETAN NOMADS are not the only pastoralists to have made laws. In the highlands of northern Yemen, tribes wrote out elaborate agreements of accord and cooperation in the eighteenth century.6 Like the Tibetan rules, these specified the ways in which revenge could be conducted and compensation negotiated based on a complicated system of protection and guarantee. Farmers in more settled communities have also made laws. In the highlands of Kabylia, in northeastern Algeria, the Berbers historically formed distinct villages, clustering in stone houses amidst their fields and olive groves.7 The area nominally fell under Ottoman rule in the sixteenth century, but only the areas most accessible to visiting officials ever paid taxes or provided recruits for their armies. Berber villagers visited markets and travelled to the ports on the coast to look for work, but they remained culturally and linguistically distinct from their lowland neighbours and managed their own internal affairs. This meant maintaining order within their own communities and carefully regulating their relations with outsiders. In most villages, an elected headman convened an assembly once a week, which all adult men attended, and he formed a village council together with his assistants and the village imam. Here, they discussed and developed village rules, qanun, as they called them, which the imam might help them to formulate, sometimes recording them in writing along with other important documents. Each village also formed part of a larger tribe, a loose association of communities that arranged weekly markets.
When the French army conquered Kabylia in an early wave of colonial expansion in 1857, they sent back reports of fiercely independent communities. The French public quickly assumed that these fitted their image of ideal peasants, living self-sufficient and harmonious lives, and scholars soon arrived to record examples of their ‘customary laws’. They compiled volumes of rules from the local qanun as dictated to them by the local imams. After translating them into French, often using legal categories from the Napoleonic Civil Code, they sent the results to the colonial magistrates, who were supposed to consult them when managing Berber affairs.
The many qanun recorded by the French are varied, obviously reflecting different village customs, but most follow a relatively standard form. The imams seem mainly to have explained the regulations of the largest village of each tribe, almost certainly adding an Islamic veneer to the laws. It is unclear to what extent the qanun were written down before this date, but the rules were certainly there in some form, as in lists of offences and punishments that defined how people ought to behave, both individually and collectively. In each text, an introductory paragraph refers respectfully to religious scholars, the Islamic qadi, the Quran, and sometimes even the Ottoman sultan. It then sets out a long list of offences with corresponding fines. The rules demand that villagers participate in collective activities, such as roadbuilding and maintaining watercourses, and that they attend communal events, such as the weekly village meetings, funerals, and common prayers. They require that the villagers coordinate their agricultural activities, and they include rules about dress, sumptuary laws designed to restrain conspicuous competitive displays, and prohibitions on the waste of household resources. Most qanun demand small payments to village funds at times of birth, circumcision, marriage, or death. They fix the amounts to be paid as dowries and what families can spend on wedding celebrations, and some even stipulate that women must not marry below their status.
The rules are evidently designed to maintain peace in the community. They generally specify that a fine must be paid by anyone who quarrels or engages in any form of violence. Curiously, they have little to say about homicide and physical injuries. But the Berbers had long traditions of retaliation and compensation not dissimilar from those of the Tibetan tribesmen, and these must adequately have regulated the related processes. The village community had to step in when those traditions could not apply, such as when a killing occurred within a family. Several qanun allow the assembly to confiscate all of a family’s property in such cases—for example, when someone has killed a relative to secure an inheritance. Other rules regulate the conduct of the headman and village officials, imposing fines on those who have not fulfilled their functions properly or who have misappropriated village funds. The amounts collected from all the fines are supposed to be spent on collective meals and village improvements. The rules also require that the villagers respect their officials, on pain of further fines.
Within these qanun, numerous rules attempt to enforce good public behaviour. They prohibit any villager from leaving dung or other rubbish in the streets, from contaminating the village fountain by washing clothes in it, and from diverting water, urinating against the mosque, or running races or singing lewd songs in the streets. People should not lie or listen at other people’s doors. Women had to dress appropriately, covering their heads, and deviant sexual behaviour was particularly sanctioned. So was fighting, and some qanun go into great detail about the different sorts of weapons the villagers were not supposed to use, which attracted a range of different fines. Some rules impose particularly harsh penalties on anyone who takes sides in the quarrels of others; others punish people who fail to intervene and restrain the violence. The qanun also make it clear that to appeal to the sultan for justice would bring dishonour to the whole village, a wrong that attracted a serious fine, as did an attempt to seek justice from another village, or allowing strangers to intervene in village matters. In these ways, the qanun formed village constitutions, regulating and controlling life within the community and creating a sense of distance from outsiders.
Berber farmers regularly married people from other villages or migrated to different regions in search of work. Thus almost all qanun contain rules specifying that they still have obligations to contribute to local funds if they retain property in it. Some prohibit sales of land to outsiders. In this way, the qanun define the boundaries of village membership. They also carefully regulate the provision of hospitality. The village, as a whole, has to be able to offer protection to outsiders, and villagers incur fines if they do not offer lodging and sustenance to a stranger, even more if they harm someone who has taken refuge with them. But it is clear that individual households had to be careful about inviting people in, especially if those people were fleeing vengeance. Village honour depended on guarding the community against outsiders, who were generally assumed to be causes of disorder, corruption, and gossip, and this meant carefully managing their relations with all those with whom they came into contact.
By the time the French armies arrived in Kabylia, the Berbers had long since converted to Islam, and they unequivocally respected the authority of their imams. But they recognized that their community might, on occasion, need to depart from the rules of the shari‘a. One set of regulations makes this explicit: although Islamic law demands that a hand be cut off as punishment for theft, it declares, this is not our custom. Equally, many qanun recognize that not allowing women to inherit—as was Berber custom, probably to avoid the difficulty of land passing to outsiders—is against the shari‘a, without condemning the practice. The qanun, that is, serve to distinguish the village and its customs from the wider world of Islamic law and authority, just as they distance it from neighbouring villages and outsiders of all sorts.
The political changes of the late nineteenth and twentieth centuries, when the French military administration was followed by a civil colonial regime, brought changes to village life and rulemaking. As the government extended its control into the highlands, the villagers began to incorporate new terms, borrowed from colonial administrators, into their rules. Villages were no longer supposed to deal with murder and theft or to banish a miscreant and appropriate his property, and they adapted their rules accordingly. But the communities largely retained their autonomous character. After the Second World War, when the French recognized certain villages as ‘municipal centres’ with their own ‘mayors’, the villagers enthusiastically produced new rules, firmly based on their old qanun. The forces of modernity, which followed hot on the heels of Algerian independence in the 1960s, made it more difficult for the villagers to control their members, many of whom took the opportunity to study in the capital, migrate to Paris, or simply leave to find work elsewhere. Still, most villages continued to insist on contributions for local projects, proudly showing their paved roads, electricity supplies, and water pipes, funded by the community, to a visiting anthropologist. They also held out against the forces of militant Islam, effectively requiring young people to shave off their beards and remove their headscarves when they returned from the towns. A movement for the revival of Berber culture in the mid-1990s encouraged a number of villages to enter into a collective agreement to control the expenses of festivals and celebrations. Like the sumptuary laws, which formed such an important part of the old qanun, the new rules placed limits on the presents they could offer during engagement ceremonies and the expenses they could devote to a wedding. The new rules do not seem to have ever been enforced, at least not in detail, but the villagers continue to talk about them with some pride. If nothing else, they remain a marker of village autonomy and the ability of the inhabitants to turn their backs on the state and the militant movements that now threaten them.
SMALL COMMUNITIES THE world over have made laws to regulate internal affairs and maintain a sense of distinctiveness and autonomy. The Berber constitutions find parallels in sixteenth-century Spain, where villagers created and maintained their own laws, which distanced the kings and priests who tried to meddle in their affairs.8 Jewish communities in medieval Cairo used their own rules to regulate internal matters, while medieval Italian cities drew up their own charters.9 The ability to make laws, even quite mundane ones, seems often to have been an important marker of independence.10 The patterns, of course, vary. Towns in medieval Germany had their own ordinances, but by the fourteenth century some were asking legal officials from neighbouring towns to advise on what their laws should be, entering into what they called ‘mother-daughter’ relationships.11 Here, legal practices established relations of voluntary dependence rather than determined independence.
Other communities turn their backs on laws and legalism altogether, managing local affairs according to unwritten rules and customs even when sources of legalism are readily available. At the other end of the Tibetan Plateau from the grasslands of the Golok tribes, the Himalayan region of Ladakh was for long an independent kingdom, although it paid tribute to the Dalai Lamas in Tibet. Now part of India, the region is still sparsely populated, with difficult roads and tracks though the mountains, which are blocked for months by winter snow. The Ladakhi population forms distinct villages, which cluster around the lands their farmers irrigate by diverting the water from melting glaciers into a network of small channels. These channels clearly mark out their fields and village boundaries. In the early twenty-first century there were still no roads in many areas, which meant that any journey to the local town—for example, to visit government offices, access health care, buy household goods, collect the food rations provided by the government, or accompany children to the local boarding school—involved a difficult trek over high passes. In winter, it meant traversing a treacherous gorge, where ice cover created a navigable path. Not surprisingly, visits by teachers, medical officers, development workers, and others were rare.
Although historically many Ladakhi villagers paid taxes to local monasteries and landowners, they always managed their own affairs, and after Indian independence their villages became practically self-governing. At the turn of the twenty-first century, headmen still managed local affairs in the remoter villages, and their positions rotated annually among the major households.12 Most agricultural matters followed well-established patterns. Numerous other village obligations rotated, too, but the visit of a high-ranking lama, repairs to the local temples, and decisions about major festivals required the agreement of a full meeting. In these cases, the headman would assemble all the adult men, as he also did when a major conflict arose, something that all Ladakhis took extremely seriously. They would negotiate suitable communal arrangements or patiently persuade angry villagers to reconcile their differences, shake hands, and move on. But, unlike the Berber and Spanish villages, the Ladakhis did not draw up local rules. They spoke of their ‘customs’, by which they meant traditional forms of dress, food preparation, and hospitality, and they followed a strict calendar of religious and other festivals, whose dates were determined by the village astrologer. They had rules for inheritance, regulated the rotation of responsibilities, and had clear expectations about how conflict should be resolved. Yet the headmen maintained practically no records. In one village, they kept in a slim file of collective decisions, which largely concerned property matters, but there was no written constitution.
The Ladakhi villagers could perfectly well have written their own constitutions. Many were literate—Buddhist monks had established monasteries in the region almost a thousand years previously, bringing with them a tradition of scholarship. The Ladakhi kings and nobility kept libraries and archives, and villagers had a high regard for scholarship, sending sons to the local monasteries. Even before the government established schools in the region there was a tradition of literacy, generally passed from father to son, which enabled villagers to read religious texts. By the early twenty-first century the majority could read and write. It must, then, have taken a deliberate effort on the part of the villagers to turn their backs on the legalism that surrounded them in the monasteries, palaces, and government offices, and to continue to manage their affairs according to unwritten rules and customs. This, in itself, may have been a reaction against outsiders, including the landowners to whom they had had to pay taxes during the era of the Ladakhi kings. A written constitution would have made the village organization more visible and potentially liable to external interference. As it was, the villagers could pay the greatest respect to outsiders and officials, as they do still to the development workers who visit to try to introduce agricultural and other improvements. The villagers can agree to all their demands and quietly ignore them when the visitors have gone on their way.
Throughout the world, independent villages have developed their own forms of government with their own logic. Internal rules and precedents always govern village affairs, but only some write them down. Written rules and records of legal cases are visible, and many want to avoid scrutiny.13
SIMILAR PATTERNS CAN be found at the heart of one of the most legalistic societies in the modern world. In the 1970s, a legal anthropologist who had been working among African tribes in postcolonial states noticed parallels with the ways in which members of the fashion industry in New York maintained a distance from the state.14 Here, a network of manufacturers and merchants could largely avoid state-sanctioned union regulations by establishing personal relations among key people. The fashion business, then as now, was volatile. The vagaries of changing seasonal trends could suddenly create huge demand for certain items, while just a few months later, retailers would struggle to shift to a similar garment. At the top end of the market, where dresses retailed for over $300, then a significant sum, clothes were designed and produced by fashion houses, whose representatives enjoyed the industry name of ‘jobbers’. The fashion houses sent the bulk of their manufacturing work out to subcontractors, who ran workshops which employed teams of seamstresses. As retailers coped with fluctuating demands, they would send orders to a jobber, who might suddenly commission large quantities of a garment from the subcontractor. The workshop would have to demand that its team put in long hours over several days to complete the order on time, going far beyond what union regulations permitted.
In theory, working practices in the industry were governed by contracts between the association of contractors and jobbers and the International Ladies’ Garment Workers’ Union (ILGWU). The ILGWU specified appropriate wages for the seamstresses and limited their working hours. Its business agent would visit each workshop regularly to discuss business and see that both sides were complying with the agreed terms. The agent’s main point of contact was the subcontractor’s floor manager, often called a ‘floor lady’, who supervised the team in the workshop, bargained with the jobber and the jobber’s representatives over prices and orders, and maintained good relations with the union. In practice, the agent understood how the business worked, and knew that the subcontractors had to ask their teams to work far longer hours than the union agreements allowed. They had to meet unexpected demand and make up for the fact that at other times they would be effectively unemployed. Everyone expected that the agent would not, in fact, enforce the working hours specified in the agreement. In return for the agent’s ‘reasonableness’, the subcontractor’s floor manager would send an agent carefully chosen gifts, such as bottles of whisky at Christmas, an expensive dress, or a present for a child’s birth, graduation, or marriage. Both the subcontractor and the floor manager developed personal relations with each agent, even stepping in to provide advice about medical issues or employment possibilities for a child, and the floor manager would personally supervise the making of garments for, say, an agent’s wife. They maintained similar relations with the jobber’s representatives, who commissioned and checked the finished garments, effectively controlling the work that flowed to the subcontractor. At the same time, the seamstresses had to be willing to work the extra hours, which they generally did, presumably realizing that it was effectively a condition of their employment.
