CHAPTER I IAn Administrator's Nightmare

Feuding Families in Nineteenth Century Bahariyya Oasis

Rttrtc'lt.pH PEtpRs

UNtvursrty op Arrrsttnnerr,t

INTRODUCTION

In this paper I wil l present a legal case that was heard before Egyptian courts inthe early 1860s.1 My airn is to identifu the different sets of nornts that were atstake in this case, to clari$, their relatiouship, and finally to draw some conclu-sions about the relevance and usefulness of the theory of legal pluralism forunderstanding the legal history of Egypt.

I. CASE SUMMARY

The case is set in the vil lage of al-Bawiti, the administrative center of theBahariyya Oasis situated in the Western desert of Egypt. It was just one episodeof an ongoing conflict between two sroups, to which henceforth I will refer asgroup A and group B. Ilecause of the complexity of the case I shall trrst iutro-duce tlre drarnatis personaelGroup A consisted of the following persons:Al. Khalaf Allah Salirn (brother of A2 and A3)A2. Husayn Salim (brother of Al and A3)A3. Thntawi Salim (brother of Al ancl A2)44.'Uthman Tantawi (son of A3)A5. Sha'ban (full cousin of Al, A2 and A3)

To this group belonge'd also a number of further uniclentif ied vil lagesheikhs (nnshayikh).

t ,-ttrr.. *-ional Archives (Dar al-watl.ra'iq al-nisnyya), Sl7ll0l19,(NÍajlis al ahkam, al-NÍaclabita l -sadir r r ) , pp. 92 9.1, 9 Sha'ban 12,30, No. 417.

B.Duprc\ l'1. I3ergcr tttd L. d-Zwitíni, Lcg,tl Plurdisrrt itt tht'Arub ltirr/ri, 135 14.10 1999 À-lrrrrcr I-aw Intrnrntionril. PrinteLl ín thc Nethtrlunls.

R. Peters - An Administrator's Nightmare

Group B consisted of three subgroups, which, according to the record,

belonged to one farnily:B1. Ka'ban Ahmad Ka'ban (brother of I l2 and 83)82. Muwaymin Ahmad Ka'ban (brother of B1 and 83)83. Husayn Ahmad Ka'ban (brother of Bl and 82)84. Nujavr-n Muwaymin Ahmad (son of 82)85. Yusuf Hallam (brother of 86)86. Abu ZaydHallam (brother of 85)B7. Ammar Abu Zayd Hallam (son of 86)88. Ali Ramadan

The two families had been at loggerheads for more than fourteen years.Both farnilies laid claim to the functions of shaykh al-nahiya (head villagesheikh, also called

'umda) and mashayikh al-hissa, i.e. the sheikhs of the dis-

tricts of the village. Originally the office of shaykh al-nahiya was in the handsof family A. However, after members of this family had killed Lbu Zayd Hallam(86) of family B, the then shaykh al-nahiya was dismissed and the office passed

to Muwaymin (82) of family B. The l;rtter was kil led two years later by the dis-trict sheikhs, acting jointly. Apparently these offices were still occupied bymembers of family A. Muwaymin was then succeeded by his son Nujaym (B4).

Somewhere during Ramadan 1277 (March-April l86l), a new confrontationtakes place. Khalaf Allah (Al ) accuses'Ali Ramadan (B8) of having burgled hishouse together with Khalaf Allah's slave

'Isa and of stealing about I 700 piasters

from a box. The accusation is corroborated by a written document, certified bythe qadiof Asyut, with the names of people who are willing to testifr that theslave had been with AIi Ramadan and that the latter had wanted to sell him.'AliRamadan was arrested by the police inspector (mulahiz) and put into prison.

Thereupon, the head sheikh, Nujaym Muwayrnin (84), together withKa'ban Ahmad Ka'ban (Bl) visited the police inspector and requested that heset'Ali Ramadan free. Upon his refusal they went to the prison and released'AliRamadan forcefully. Then they fetched Yusuf Hallam (B5) and the three ofthem threatened the accuser and four of his relatives: l-ris brother Husayn Salim(A2), his nephew'Uthman Tantawi (A4), and his cousin Sha'ban (A5). Duringthe ensuing scuÍïe, which took place just after sunset, Ka'ban Ahmad (B 1) shot'Uthman Tàntawi (A4), as a result of which he died. The perpetrator and hisrelatives then barricaded themselves in their houses, so that the police inspec-tor could not arrest them. Later, the police inspector would complain that hecould not do anything about it, because he was there alone (i.e. the only repre-sentative of the central government).

On 27 Ramadan 1277 (8 April 1861) six members of group B (Ka'ban

Ahmad, Nujaym Muwaymin, Husayn Ahmad Ka'ban, Ali Ramadan, YusufHallam and Ammar Abu Zayd) were arrested. Two guns were impor.rnded.During the investigation, Tantawi (A3), the victim's father, produced three eye-

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Legal Pluralism in the Arab World

witnesses testifuing that Ka'ban Ahrnad (Bl) had shot'Uthman Tàntawi (A4).

One of them affirmed in addition that Khalaf Allah's brother Husayn (A2) andYusuf Hallam (B5) had been fighting one another with sticks (nabbur). Thevictim's father and the district sheikhs (group A) later denied that anybody hadbeen fighting with sticks. The district sheiklis confirrned that'Uthman hadbeen shot by Ka'ban. Further they stated that on the side of the accused also hisbrother Husayn and Ammar Abu Zayd (87) had taken part in the siege andfired shots, without, however, hitting anybody. The accused claimed that allthese testimonies were prompted bv enmity against them.

Thereupon the suspected murderer and his helpers were transferred to thenudiriyya of al-Fay1.um firr further investigation and their trial.2 Ka'banAhmad persisted in his denial. He contended that the district sheikhs had beenput under pressure by the police inspector to testifz against him and claimedthat he had found two fellow prisoners in the local prison (hasil) willing to tes-tifr that they had overheard a conversation between sorne ofthe district sheikhsand Ka'ban during which they had said words to this effect. However, none ofthe other prisoners was wil l ing to confirm this. Furthermore Ka'ban Ahmadmaintained that he could produce four witnesses who would testify that thethree witnesses against him had been bribed by the victim's father. Finally healleged that one of these three witnesses had nclt been present in al-Bawiti dur-ing the events and that another had been the servant ofthe district sheikhs whohad killed his uncle Muwaymin. The four witnesses were broughtro the mudi-riyya and affirmed that the victim's father, Tantawi Salim, and his two brothershad hired two of the witnesses against Ka'ban Ahmad for 600 piasters.Confronted with the testimony, Tantawi Salim and the district sheikhsanswered that they could rrot accept these testimonies, as the fbur witnesseswere relatives of the suspects. In the meantirne, Khalaf Allah had submitted apetition to the mudiriyya, requesting that the burglary of his house and thetheft be dealt with. The case was then referred ïo the qadi of al-Fayyum, whohad to dismiss the case fbr lack of sufficient evidence.

In prison, Yusuf Hallam and Ka'ban Ahmad fell ill and died on 7 and 17Rajab 1278 (8 and l8 January 1862). The remaining suspects were released on4 Sha'ban 1278 (4 February 1862). Less than a year later, one of them, AmmarAbu Zavd. was killed and the first victim's father. thntawi. was accused of

I B"t*..n the abolition of the regional .ludicial councils in I 860, and their re-establishment in I 863,the provincial administration ( nudiriyya, nuhafaza) dealt with all criminal cases. Sami, I 928- I936:3lI, 347 .In this case the mudiriyya of al-Falyum woulcl be competent.

R. Peters - An Administrator's Nightmare

having committed this murder. Later the record merltions that Khalaf Allahwas cor-rvicted for that murder. On ll Jumadal1279 (4 November 1862) theqadi of a\-Falyum heard the case of 'Uthman's killing. However, since the mainsuspect, Ka'ban had died in the n.reantime, he could not convict anybody forlack of a defendant. Another suspect, Nujaym Muwaymin died on 5 Jumada1279 (28 October 1862) in a hospitai.

' fhe two remaining srrspects were arrest-

ed again on 20 Ramadan 1279 (II March 1863), and imprisoned, this time in

,the mudiriyya of Bani Suwayf instead of al-Fa1yum, since the case was referredto the mailis of Bani Suwayf, that had been established two rnonths earlier.3

For all clarity I shall here give a survey of the clashes between group A arndgroup B:l. A ') B: unidentified members of group A kill (85) Abu Zayd Hallam. As a

result tl.re heird village sheikh (from group A) is dismissed and Muwayrnin(82) is appoir-rted;

2. A + B: district sheikhs belonging to group A kil l Muwaymin (B2). His sonNujaym is then approinted head village sheikh. Members of group B stzrrtprovoking group A (especially Khalaf Allah);

3. B r A: Nujaym (84) allegedly beats up Khalaf Allah (A1);

4. B I A: Ali Ramadan (B8) steals from Khalaf Allah (Al ) and misappropriateshis slave. Members of group B release Ali Ramadan (88) from prison byforce;

5. B -r A: Ka'ban Ahmad (Bl ) kil ls'Uthman Tàntawi (A5) during the ensuingscuffle;

6. A - + B: Khalaf Allah (Al ) kills Ammar Abu Zayd (87)The Cour-rcil decided as follows:

Regarding the murder of 'Uthman, it contented itself with the qndi's sen-

tence, since his suspected murderer had clied.

With regard to Husayn Ahrnad Ka'ban and Ali Ramaclan, the Council was ofthe opinion that their presence during the fight has been established by the tes-timonies of the district sheikhs and other witnesses in spite of Husayn's denial.Therefore they have committed the offence of riotous assembly (ta'assub) as

' , " ' * * " 2 t

Ra jab 1279 (18 Janua ry l 8ó3 ) . Zagh lu l , 1900 : 207 , San r i , 1928 -1936 : i / 1 . - r 55 -358 . A tthe time of the otÍense, the juclicial bociy to deal rvith it rvars tht nrurliríyya of Fa11runi. Àfter the rcestablishrnent of the iudicial councils oi first instance (maialis) thc council of Bani Suwayf lvas totake coÉlnizirnce of lhc case, rvhich had lhcn to be preparecl by the tnudiriryLr of Rar.ri Survayf.

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Legal Pluralism in the Arab World

defined in Section l2 of Chapter 4 of the Law.4 Since Husayn had been irnpli5-oned fbr l9 months duritrg the investigation, the council sentenced him tol9 months imprisonment with deduction of the period of his detention await-ing trial.

With regard to Ali Ramadan, the Council viewed that there were aggravat-ing circumstances and other offenses;

l. The circumstance that his forceÍïl release from prison was the cause of thequarrel.

2. The accusation of having burgled a house and misappropriated a slave.Although the qadi in al-Falyum could not sentence hirn on the basis of theavailable evidence, there existed a strong suspicion against him founded onthe testirnonies the witnesses who had seen him with the slave and had tes-tif ied that he wanted to sell the slave and share the price (the record doesnot indicate with whom).s

3. The circurnstance that he was not able to reimburse the stolen money andto indemnifl, the owner of the slave.

On these grounds, the Council setrtenced Ali Ramadan to three years of forcedlabour in lowly jobs (ashghal dani'a) in the mudiriyyn for theft as defined inSection 11, Chapter 3 of the Law6

The Council 's sentence was reviewed by the highest court in Egypt, theMaj l is a l -ahkam on 9 Sha'ban 1280 (19 January 1864). In the meanr ime, on2l |umada II, 1280 (3 Decernber 1863) one of the two rernaining convicts, AliRamadan, had died of a stroke.

The Majlis al-ahkam held that the remaining convict Husayn AhmadKa'ban had been given too l ight a sentence, since the Council did not take inconsideration the circumstance that he was among the gang who caused'Uthman Tàntawi's death. Therefore the Majlis al-ahkam sentenced him to fiveyears deportation to Fayzoghlu Carnp in the Sudan,T on the strength of Section12, Chapter 4 (riotous assembly) and Section 11, Chapter I (manslaughter.).

*rh*t*-"-*eads: "lf a village sheikh assembles rvith the pers;intsi or a peirsant wltn other peasantsr iot ing i rg i r inst thc v i l lagc chief ( r razi r t l bdur l ) or the (heacl) shcikh, and at tack hi rn u, i th st ick.s orttther rveirpons, and if they only beat him and do not shoot at hinr rvith flrcarnrs, then it is ncces-sarv lor reasons of publ ic order that the sheikh or the peasant rvho is the leacler of the g.rng receirestrvo htrndrcd lashe.s ancl thc pea.satrls l'ho were u'ith hinr, one hundred lushes. I{orvever, if thcy haveshot with firearms, then the1, sliall rcceive thc punishment specificd lbr their likes'l Thc last sen{bncc

_ probably meitns that thcy rvill be prosecute'd fbr nranslaughter or rrr.rlicious wounding.r A possib le scenirr io nray have been thnt 'Al i Ranradarr shared the s lave's pr ice rv i th the s lave hinrsel l ,

t'ho rvas Planrrins to ntn awiv after the sale. At.rny ratc, the slave had clisirppelrcd antl lvas not. brought to j t rs t icc.Ó This sect ion makes theÍ i punishablc rv i th f i r rcccl labour in lorv lv jobs being chained, Í ionr three

nronths to three vears accordinq to lhe vahre of the sto ien propcrtv.7 Th is peni tent iary had been in use s ince the | 830s ant l wirs c losed in I 86.1 ( H i t l , 1959: I 6. i ) . Thrs sen-

tencc nlust h;n'e been pr()nouncecl just licÍirre its closure-

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R. Peters - An Administrator's Nightmare

2. ANALYSIS

The record shows clearly that at least two sets of rules were at play in this case:state enacted crirninal law and the shari'a. At several stages of the proceedings,certain aspects of the case were referred Ío the qadi. Iiirst some words on therelationship between statute law and the shari'a in criminal matters.8 Until1883, when French law was introduced, the shari 'a was the law of the land. This

. law was applied by the qadi, a single judge. In criminal and commercial rnatters" other jurisdictions existed, the judicial councils, mojalis, which were part of the

executive power and applied statute law, in our case the Imperial Code (al-

Qanunnarne al-sultttni) of t8-r2.s These councils were staffed not by religiousscholars, 'ulama', - although a religious legal advisor, mufti, was attached tothem - but by administrators without a formal legal training. In criminal mat-ters this state of affairs fits in the framework of the theory of Islamic jurispru-

dence, ftqh, according to which state authorities have the discretionary powerto punish sinful or undesirable behaviour. This power is called ta'zir. Statutelaw in criminal matters, such as the codes enacted in nineteenth centruryEgypt, must be regarded as instructions of the head of state to his officialsrestricting their discretionary powers and ordering them to apply ta'zir accord-ing to certain rules.

As a rule in criminal cases, and especiallv in cases of violent death, the qadiwould first hear the case. lnlhe qadi's involvement with criminal cases, the pri-vate aspect was most prominent. His main task was the adjudication of privateclaims related to offenses, as evidenced by the fact that the proceedings arealways based on a claim advanced by a plaintiff against a defendant.

These private claims could be either punitive or aimed at obtaining finan-cial compensation. There were three kinds of punitive claims: the demandingof retribution in cases of homicide and wounding, the demanding of the appli-cation of hadd penalties (i.e. the fixed penalties for offenses narned in theKoran), and the demanding of satisÍàction in the form of ta'zir, discretionarypunishrnent for sinful behaviour. In dealing with honiicide, which could entaiicapitarl punishment, the qadi acted as a religious judge, sanctioning the takingof the murderer's life on the strength of religious nonns. The cladi also heardcomplaints of persons whose honour was injured, usually because of beatingand abuse during a quarrel or because of the unlawful defloration of a girl, andfurther complaints involving hadd crines. Upon demand of the plaintiffs, hecould sentence the defendant to flogging, based on ta'zir or, exceptionally, haddptrnishment, or, to short terms of imprisonrnent on the strength of ta'zír.

For a detailed analysis ofthe 4ndi's authority in crir.nin:rl matters ir) this period, see Peters, 1995 andPe te r s ,1997 .lext in Zaghlul, 190(l: NIulhatl, t5ó 178 and Jallad, 1890-189-5: II,90-102. For further delails regard-ing this code, see Baer, 1969, Peters, 1990 and Peters, Íbrthcoming.

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Legal Pluralism in the Arab World

The application of Islamic criminal law by the qadi was curbed by the fact thathis sentences (except flogging, which was administered in court imnediatelyafter the verdict) were carried out by the executive.The qadi's death sentencesdid not pose a problem: after due revision, they would be executed by the gov-ernment. Retribution fbr wounding, however, wers a different matter. Since thegovernnent was apparently reluctant to administer such sentences, the qadiscarefully avoided pronouncing them. I 0

Most often, however, these private clairls heard by the tladi were of a finan-cial nature, such as demanding bloodmoney, revendication of stolen property,or compensation for illegal defloration. In these cases the qadi acted as a civilcourt. However, since his jurisdiction was a general one, he did not and couldnot close his eyes to the penal aspects of such cases, which often led to a sen-tence of flogging or imprisonment based on ta' zir or hatJd. As in the case of ret-ribution for wor-rnding, the government seemed to be averse to executing haddpenalties such as amputation or stoning to death, and the rTadls therelbre didnot pronounce such sentences.

ln our case the first involvement of the qadiwas when the burglary and theftwas referred to him by the mudiriyya of al-Fapmm. My impression frorn othermaterial is that in the l9th century a victirn of theft could follow two courses:he could bring the case before the qadi or he could report it to the police. Theqadiwould deal, according to the shari 'a,with the revendication of the stolenproperty and with the criminal aspects of the case. However, since the qadiwasdependent of the government for the execution of his sentences and since hewould be aware of the fact that the government would not carry out ïhe haddpenalty of ampr-rtation, he wor.rld always find grounds for not sentencing thedefendant to this punishment. Only in 1880 did the Ministry of Interiorexpressly prohibit that cases of theft be immediately submitted to the qadis,instructing them that they were to hear such cases only after they had beendealt with by the police.lI The latter procedr.rre had beerr the more usual prro-cedure. A victim of a theft would go to the police, who would investigate thematter and, if there was sufficient evidence, submit the case to the Council.During the same procedure the property claim would be dealt with. Only if thecomplaint did not result in criminal proceedings would the case be referred tothe qadi to look into the property claim. This is what happened in our case.There was no proof of Ali Ramadan having burgled Khalaf Allah. Therefore thecase was brought before the cladi to settle the property claim. As we have seen,the plaintiff's claim could be awarded. $

The second instance of the qadi's involvement was when he was asked to trythe kil l ing of 'Uthman Tantawi. As a rule ali cases of violent death would be

l0 For a d iscussion of th is re iuctance, see Peters, 1997.1t Decree of iVÍinistry of Interior (Nizarat al-dakhiliyva) of 20 Muharram 1297 (3 January 1880)

Ia l lad. 1 890-1895: IV. 145.

R. Peters - An Administrator's Nightmare

investigated by the qadi in order to establish whether the heirs could sue ar.ry-body. For manslaughter, the procedure was laid down in the Imperial Code of1852. Chapter I, Section 3 stipulates that outside Cairo these cases be tried bothby the qadí and by the Council in one session. It the qadi would not fir-rdgrounds for capital pnnishment, the Council would try the case and coulclimpose a sentence of maximum fifteen years of forced labour. In our case, theqadi could not pronounce a judgment as the defendant had died in the mean-time. -

Whereas the shori'a courts primarily dealt with private claims, the councilswere rnore concerned with the public aspect and in trying criminal cirses. Theirprimary aim was to preserve public order and security. The procedural ruleswere less strict than those of the shari'a courts and very much resembled anadrninistrative investigation. From the records it is not clear to what extent thedefendants were entitled to defend themselves cluring the trial. They certainlyhad no right to legal counsel. One gets the impression that they were onlypresent, not to defend themselves, but rather to be there in case one of themembers of the Council wanted to interrogate them. Moreover, the require-ments fbr evidence were not as strict as those inthe shari 'q courts. Therefore itwas easier for these councils to sentellce detèndants. It was not even requiredthat an offense was proven beyond reasonable doubt: strong suspicion wasenough and as a rule the punishment was more severe as the sr.rspicion, corrob-orated by evidence, was stronger.l2

The result of these arrangements was that in criminal matters statute lawand the shari'a were mostly complententary. The two systems overlapped onlyoccasionally, e.g. in thefl related cases. This duirl legal system was subordinateto the state for two reasons. First because the state had the power to define therelative competence of the courts (the attribution), either orr the strength oflegislation or because the police, to whom criminal cases first would be report-ed, decided on further steps to be taken. Secondly because rhe shari 'a courts(with the exception of sentences of flogging) depended on the state fbr the exe-cution of their sentences. However, although both systems were subordinate tothe state, they diflèred regarding the source of the rules to be enforced and theauthority to interp.rret them: for the slnri'a this authority belonged to the'tilanta', whereas statute law was by its nature a matter of the state. So, the twosets of norms were different fron each other in the following aspects:

l2 S"" " .g.

a decrce f ronr 1275 comp[ 'ment ing the lmpcr ia l Codc, rvhich in Sect ion 2 inrposes a pr ison sentence of Íive years or less foÍ certain instances of marrslaughter, whereby thc length of the sen-tence lvas to be cletermined "in accordilnce rvith the nre.lsure of rveakncss or force of the evidenceproduced rg,a inst thc arccused" Sanr i , 1928-1936: I I I /1,295.

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Legal Pluralism in the Arab World

origin of the rule enforcement by decision on

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Althor"rgh not explicitly mentioned in the record, it is clear that another set ofrules playecl a role in this case. We must be crrreÍirl here, because the record ofthe case does not reveal the wl-role story of the relationship between the twogroups involved. But a closer look at the course of the events mentioned in therecord may clarify a few more aspects.

It is not clear what the origins were of this lasting conflict between the twofamilies. We do not know what prompted the first murder. However, the over-all picture is evident: it is a matter of vendetta (flro'r), retaliation for murderand aggression. Part of the conflict was a struggle between both groups for theoffice of head village sheikh. Feuding, a social phenomenon usually found intribal societies, can provide a certain measure of pLrblic security in societieslvhere there is no state or the state cannot impose its authority. However, feud-ing tends to persist even when the state becomes more powerful and can assertitself, e.g. by enforcing criminal laws. When this is the case, two competing andconf'licting normative systems exist. However, as appeelrs fiorn this case, adher-ence to the customary rules of vendetta does not totallv exclude any recogni-tion of state authority. This is evidenced by the fact that both groups had vil-lage sheikhs anong them and that the office of head sheikh was one of thestakes of the contlict. As in the case, these sheikhs are strrte appointed officialslvith important functions in enforcing state lalvs. Horvever, with regard to ven-detta, it would seem that customary prirctice was to keep state authorit ies outof it. This would explain the vehement re;rction of group B, when group A hadrecourse to state justice after the burglary of Khalaf Allah's house (group A) byAli Ramadan (group B) and his subsequent arrest. C)ne cannot help feeling thatgroup B regarded the reporting of the case to the prolice as improper.

Thus, in addition to statute law and shari 'a, there were customary normsinvolved in the case. There is no dispute about labelling the first two sets ofnorms as law. But is it helpful to apply the term law to the rules of vendetta inthe context of the case? One of the beneficial effects of the theory of legal plu-ralism is that it has made us aware of the existence of competing norm systemsin society. And as I have said in the introduction, advoczrtes of legal pluralismter.rd tc'l call these systems law in order to ernphasize their ecluivalence. Now Ihave certain reservations in this respect. In my view, an essential element of thenotion of la"v is that it gives procedures and institutions fbr settl ing conflictsand I ant inclined to regard this as the fcrremost criterion fbr establishing

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whether or not a given set of norms must be regarded as law. h-r the preseutcase, the record does not give any infbrmation on whether the vendetta was just

a concrete pattern of social ordering based on notions of individual and collec-tive honour or that it involved procedures or institutions of mediation andarbitration aimed at settling the conflict. Present-day evidence from Egyptindicates that vendetta is sti l l an accepted and wide-spread custom, especiallyin rural areas (Botiveau, 1987-1988, Ben Nefissa, in this volume; for the Sinai,

,r see al-Hilw and Darwish, 1989). Studies of the phenolrlenon show that thenorms governing vendetta include the possibility of setting up cortrts of custom-ary arbitration (nmhkarna'urJiyya ahliyya) in order to put an end to the con-flict and provide certain procedural rules to be followed by these courts.Therefore, there are strong reasons to assume that such norms also existedwhen our case took place. ln this light, I do not hesitate to apply the term lawto these norms of fer.rdine.