Dr Paul Dresch (Oxford, Anthropology)
A good deal of literature in history and jurisprudence identifies law with centralizing power in the form of communities, states, or kingdoms. Yemen offers a contrasting case of decentralized, non-state law. Treatises from about AD 1400 to 1650 present a complex and formalized system of laws that govern vengeance, compensation, protection, and shifting (contractual) liability. In the present chapter this decentred law is contrasted with Kant’s view of law as coincident with a Hobbesian ‘common power.’ The contradictions in Kant’s view of public right or Recht and of cosmopolitan right are drawn out, and on the basis of the Yemeni material an alternative is proposed that depends upon mutual recognition of the right to protect others.
Parallels are drawn with Anglo-Saxon and Frankish law. However, the focus is on previously unpublished and unstudied Arabic texts. These are aligned with eighteenth-century law-texts from the same region and with ethnographic material to suggest a very long standing tradition of colloquial but written legalism distinct from that of learned Islam and from centralizing powers such as kingdoms and the Zaydi imamate. The chapter thus brings into view a body of material that has lain unexamined since 1948. It also brings to view an urgent necessity to think beyond the ‘imposition’ of law by centralizing polities. Briefly put, the ‘laws of protection’ (ahkâm al-manc) rest on an assumption of far-reaching relatedness such that people of tribal standing can all claim ‘genealogy’ in the eyes of others. That claim implies a claim to honour, and thus to certain duties as well as rights. Foremost among the rights and duties at issue are those of protection, and thus a place in the exchange of vengeance, retaliation and refuge, all of which is laid out explicitly in the form of definitions, limits, and binding conditions.
The assumptions underpinning such ‘customary’ law are more those of the natural law theorist Pufendorf, let us say, than of Kant. The rules at issue are more prominently secondary, in Hart’s terms, than primary. Although the law of the tribes is centrally concerned with the rightness of coercion (see here certain parallels with early Hart and with Lamond’s work), it is not in itself any more or any less coercive than, let us say, contractual or commercial law of a kind that typically fails to coincide with simple state enforcement. Indeed, parallels are available with the logic of public international law as it stood until recently.
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