jārak al-qarīb wa-lā ibn ʿammak al-baʿīd (your neighbor who is close, rather than your cousin who is far away)
A tribal shaykh in a crowded suburb of East Amman reminded me of this maxim last September.Footnote 1 I had questioned him about his responsibilities in the sphere of dispute resolution toward local residents other than those of his own clan, and more specifically toward those without any tribal networks. The shaykh, who had been introduced to me by the Jordanian Public Security Directorate (PSD), clearly sought to emphasize the civic dimensions of his role by stressing that kinship was not the defining feature of his office: his was a public service that extended even to non-Jordanians, and at times of crisis, a neighbor could be of far more value than a geographically distant relative. The maxim runs counter to tendencies toward cliquish tribalism, but in fact, many Jordanians today believe that tribalism (ʿashāʾiriyya) is resurgent in various forms, that it shapes the nature of dispute management, and that government policies are largely accountable for it.
The social composition of Jordanian communities has changed dramatically over the last half century. In 1960, when nearly half of Jordan's population still lived in rural areas, the rationale for observing tribal dispute resolution processes was more immediately apparent than it is today.Footnote 2 The late anthropologist Richard Antoun observed that the small northern village of Kufr al-Maʾ was typical of Middle Eastern “peasant” villages, in that most of the inhabitants’ neighbors were their kinsmen, and multiplex relations between the villagers defined the basis of social control mechanisms between them.Footnote 3 One's neighbor was frequently one's cousin/sister-in-law/coworker/fellow cultivator, and would by necessity continue to be so even in the event of a dispute. This situation, combined with the population's relative inexperience of the civil justice system, encouraged settlements negotiated or mediated through kin networks that led to compromise, as opposed to settlements reached by means of adjudication or arbitration (such as those provided through the civil courts).Footnote 4
Today, however, demands for education and employment have transformed the country into a mobile society; more than four-fifths of the population are urban dwellers; over 10 percent of the country's inhabitants are very recent refugees;Footnote 5 and in Jordan's capital, not only are neighbors frequently unrelated, but also as in any city (and notwithstanding the shaykh's claim), they are often unfamiliar. In this context, civil law in Jordan has asserted itself over most areas of public and private life and tribal justice (qaḍāʾ ʿashāʾirī) has officially been phased out. Yet, at the same time, kinship ties in Jordan have seemingly undergone a revival. This has been manifested in recent years in phenomena ranging from the burgeoning of mutual kin associations to ongoing clashes between students claiming different tribal allegiances on Jordan's university campuses. And in January 2013, parliamentary elections held following supposedly far-reaching constitutional amendments were boycotted by the Islamist bloc and returned a majority of loyalist independent candidates whose backing came from kin alliances. Meanwhile, tribal settlements continue to govern the resolution of multiple types of disputes.
Given the changes in Jordanian society, the purpose of this article is to investigate the extent and causes of the continuities in tribal traditions of dispute management. Following an initial discussion of how my analysis of dispute resolution contributes to the existing academic literature on tribalism in Jordan, the remainder of the article is divided into five parts. The first reviews how the modern state has historically managed tribal—and specifically Bedouin—identity, and accordingly how it has sought to assume legal control over tribal dispute processes and to incorporate them into mechanisms of civil government. The second looks at the current legal and administrative status of tribal dispute resolution. The third part investigates whether, in their current form, these processes complement or challenge state authority. The fourth considers the waning influence of tribal shaykhs in the process of dispute resolution, and the final part explores what observing tribal justice means to different sectors of the population in various contexts.
Examining tribal settlements from the perspective of both state and citizens in this way makes it very apparent that in Jordan, the prominence of such settlements cannot be explained simply as a “natural” organic process embedded in grassroots communities. Were that the case, the fact that they are readily applied by the police in altercations between city-dwellers who are otherwise entirely disconnected would appear anomalous. Nor is it merely a tool artificially cultivated by the state in order to inculcate a particular understanding of national identity. Were that the case, one could not have anticipated the number of clashes between the authorities and citizens premised on kinship disputes in recent years. Rather, it is the intersection of top-down policies with bottom-up practices across multiple spheres that is constantly reinscribing the significance of tribal dispute management in Jordan in various contexts. And while observing tribal dispute resolution traditions can be a sign of conformity with the hegemonic values that the state promotes, it can also paradoxically be an act of resistance to the encroachment of the contemporary state into citizens’ lives.
REVISITING TRIBALISM THROUGH THE LENS OF DISPUTE RESOLUTION
ʿAshāʾiriyya (understood most broadly as acting in accordance with extended patrilineal kinship links) is recognized by Jordanians as a prevailing feature of their culture and politics, both local and national, but the forms it takes are in flux and the features that ensure its survival are persistently contested. As Linda Layne has persuasively argued, ʿashāʾiriyya has a dialogical nature. Depending on the context, it can be used to refer to the role played by tribes in Jordan's history; to celebrate certain commendable qualities of the contemporary Jordanian citizenry; or, conversely, to point to the backward nature of society or distinguish members of the East Bank population, who assert themselves to be the original inhabitants of Jordan, from the Palestinian “other” who themselves came, or whose forbearers came, to Jordan after 1947.Footnote 6 By the same token, though Layne does not explore this avenue, ʿashāʾiriyya, when referring to customary laws, cuts across divisions between “East Bankers” and “West Bankers,” Bedouin and non-Bedouin, aṣīl and non-aṣīl,Footnote 7 and even urban and rural dwellers. It is a practice that connects the nation in its reach, though often divides it in its effects.
Layne's work, along with that of anthropologists and political scientists such as Andrew Shryock, Joseph Massad, Geraldine Chatelard, Christine Jungen, and Yoav Alon, has deepened our understanding of how Jordan's national identity has been forged around tribal traditions.Footnote 8 However, there has been little attempt to connect this observation explicitly to the way in which it affects the practice of tribal laws.
In many parts of the Middle East, ḥukm ʿashāʾirī (tribal law) coexists or competes with civil law, but an easy explanation for the literary deficit on the subject in Jordan is that tribal law was officially abolished in 1976. Prior to that time, the most authoritative sources of information on post-1921 tribal laws were ʿAwda al-Qusus (1877–1943), a lawyer from a prominent Karaki Christian family who wrote of tribal customs in his hometown and surrounding area;Footnote 9 ʿArif al-ʿArif (1892–1973), a Palestinian historian and journalist who was chief secretary of the Transjordanian government between 1926 and 1929 and mayor of Jerusalem in the 1950s;Footnote 10 and Muhammad Abu Hassan, a Jordanian policeman qualified in law and anthropology.Footnote 11 From the 1970s, Ahmed Oweidi al-ʿAbadi, a former public spokesperson for the PSD, published a number of books in Arabic on the topic, followed by a doctoral dissertation in English. While written in somewhat eulogistic terms, the last work addresses the question of how a corpus of tribal laws was incrementally subsumed and then phased out by the state.Footnote 12
Within this context, Richard Antoun's anthropological studies in the agricultural north during the 1960s provide an outsider's perspective on how customary laws were practiced in a non-Bedouin, sedentary context. Basing his insights on periods of participant observation of the major families in the village of Kufr al-Maʾ in Kura district, Antoun's commentary on customary laws reflects the solidarity he perceived within this community.
Revisiting the village and the topic some forty years later, in 2000 Antoun used his findings from Kufr al-Maʾ to present an anthropological understanding of “civil society” that challenged what he perceived as the Western ethnocentric characterization of the concept that had arisen.Footnote 13 Instead of viewing civil society automatically as a tool for promoting democracy through the functioning of voluntary associations, labor unions, independent newspapers, and political parties, Antoun argued:
Civil society is constituted by universal processes of trust and cooperation that have separate inflections in different cultures . . . the inflection in Jordan and other tribal cultures in the Middle East is the process of consensual, ad hoc conflict resolution within the context of wide-ranging social networks . . . [and] processes of a civil society form a seamless web with state processes rather than a sharp dichotomy with them.Footnote 14
Antoun's premise that tribal dispute resolution processes generate mutual trust diverges from legal anthropologists’ observations elsewhere, which indicate that such settlements are designed to enable the feuding parties to continue living within the same community wherever possible, but need not rely on trust.Footnote 15 In a specifically Arab context, the primary objective of tribal settlements is commonly presented as restoring honor (sharaf) to the aggrieved party and preventing his/her kin from committing (otherwise inevitable) revenge attacks.Footnote 16 However, Antoun's assessment also invites us to consider whether, in the “modern” society that on many levels Jordan had become by 2000, the application of tribal laws was still of use to its citizens. Certainly in his view, it was. Rejecting implications that tribal laws were primitive and outdated, he highlighted the continued relevance of the consensual assumptions behind the practices of wāsṭa (intermediation), jāha (the delegation sent to negotiate on behalf of the offending party), ʿaṭwa (the temporary truce signed between the kin of disputing families), and ṣulḥ (the final reconciliation between those parties). But his conclusions were based exclusively on insights into a small rural farming village, gained, for the most part, several decades previously. He omitted the perspectives of women, with whom he had limited interactions whilst in Kufr al-Maʾ, and those of politically marginalized groups in various parts of the country. Perhaps most notably, despite conceding that many of Jordan's tribesmen were city dwellers, he omitted any comment on urban areas, where by 2000 the vast majority of the population lived.
Antoun's anthropological approach to studying the application of tribal laws is subject to criticism if one assumes that manifestations of tribal identity in Jordan, including the practice of tribal settlements, have very little to do with indigenous processes, and therefore focusing on localized interactions in a small bounded community, in the tradition of classical anthropology, is likely to yield suspect insights. According to this interpretation, ʿashāʾiriyya has much more to do with state policies aimed at assimilating and controlling the population at a national level. Such a view concurs with Joseph Massad's portrayal of the artificial, constructed nature of tribalism in Jordan.Footnote 17
In this article, I steer a middle path between these positions, arguing that integrating analyses of the centralized politics of control with those of the grassroots reactions to them provides the best position from which to understand the current rationale behind the dispute resolution process. This has naturally informed my methods of enquiry, which join analyses of official documents and interviews with representatives of the state and the legal profession to qualitative interviews and ethnographic material gathered from senior tribal figures and individuals in a private capacity across the kingdom. Between March 2011 and May 2012, I undertook research on this topic while conducting fieldwork for a related project on the Jordanian Public Security Directorate (PSD). In this context, five of the sixteen tribal elders/shaykhs I spoke to were referred to me by the PSD (indicating the linkages, official and unofficial, between them). I gained access to other interviewees via contacts with a local news agency and academic and casual connections, and I spent periods ranging from days to months conducting interviews in several parts of the country. I was also able to compare multiple records of the terms of truces between opposing parties held by police stations and by tribal elders, enabling me to develop an understanding of how they are invoked in various contexts.
LEGALLY DE-/RECONSTRUCTING TRIBAL IDENTITY
Definitional problems plague the Arabic term ʿashīra in the same way that they do the English “tribe.” In Jordan, the word is used obliquely, often referring to smaller subsections (the firqa, fakhdh, or ḥamūla), while qabīla (used elsewhere in the region) is scarcely used in common parlance. Eugene Rogan describes the tribe expansively as “a social group defined in genealogical and territorial terms. Genealogy is taken here in a political rather than biological sense. While not necessarily linked by DNA, fellow tribesmen acknowledge a common ancestor as part of a shared foundation myth and history.”Footnote 18 But the “tribal” label also evokes associations with colonial rule in the Middle East, since the mandatory and protectorate powers exerted considerable influence over the form ethnic and tribal categorizations took.
In Jordan, this influence manifested itself specifically in the Mandate's legal and administrative division of the population into sedentary and nomadic (Bedouin) tribes. During the period of Ottoman suzerainty in the region, direct rule had been enforced in piecemeal fashion, and by the start of the 20th century Ottoman authority ranged from extensive in Ajlun district to virtually nonexistent in most of the bādiya lands populated by raiding Bedouin tribes. Meanwhile, the Ottomans enjoyed/endured various temporary alliances with Bedouin tribal leaders to protect the safe passage of pilgrims en route to Mecca. Lifestyles ranged from fully nomadic to fully sedentary. Settled communities not under direct Ottoman control were often obliged to pay Bedouin tribes in the surrounding countryside khūwa (protection payment) to avoid being raided, but Rogan emphasizes that while the Bedouin considered their way of life to be culturally superior—in terms of history, dress, speech, diet, and institutions of self-rule and of conflict resolution—peasants and nomads were very similar.Footnote 19
Nonetheless, since its inception, the Hashimite regime (initially with British guidance) sought to distinguish between the minority nomadic Bedouin and the sedentary population. As Massad has argued, the authorities took juridical and military measures to assume authority over the East Bank tribes while simultaneously embedding certain characteristics they specifically associated with the nomadic Bedouin—traditions of bravery, honor, and generosity—into the national psyche.Footnote 20
Under John Bagot Glubb's command, the core combat units of the Arab Legion were formed of members of nomadic Bedouin tribes, fostering loyalty amongst the latter for the new regime. The recruitment base for the security forces subsequently broadened, but today it is commonly maintained in the Western press that the backbone of support for the monarchy is Bedouin.Footnote 21 However, journalists, some scholars, and even some Jordanians conflate “Bedouin” with “tribal.”Footnote 22 This conflation is based on an assumption that East Bankers are automatically both and that this is what distinguishes them from the supposedly nontribal Palestinian population. This fails to account for those Jordanians, particularly in the north of the country (for instance, in Kufr al-Maʾ) who consider themselves tribal but not Bedouin, the increasing number of city dwellers who do not consider themselves tribal, and conversely those Palestinian Jordanians who consider themselves Bedouin. As Layne notes, the word badū comes from the root bādiya (desert or steppe) and literally means desert dwellers, “but in the many handbooks on Jordan one frequently finds the terms tribe, Bedouin, nomad, pastoralist and desert Arab being used interchangeably.”Footnote 23 The “Bedouin” categorization is confusing not least because there are perhaps no more than 150 truly nomadic families left in the country,Footnote 24 and because many of those who identify themselves as Bedouin today are city dwellers.Footnote 25
At the start of the British Mandate in 1922, the Tribal Administration Department reported the number of nomadic Bedouins as 102,120, or around 46 percent, of a total Transjordanian population of 225,350.Footnote 26 Under the auspices of the 1924 Law for Tribal Courts, codified tribal law was to be applied only to the Bedouin, and in 1929, eleven southern and eastern desert dwelling tribes were categorized as Bedouin for the administrative purposes of the Bedouin Control Law. In the 1936 revisions of the Tribal Law, after the authorities began to recognize some of problems involved in categorizing tribes as self-contained rather than overlapping units, five of the tribes originally named were dropped, and three others added.Footnote 27 A committee formed of the head of the Arab Legion and two other “experts” in Bedouin affairs dealt with the surveillance and settlement of these officially Bedouin tribes, and ultimately oversaw their Tribal Courts.
The 1929 Control Law excluded the majority of East Bank Jordanians, even though the latter considered themselves to be tribal. Urbanites, fallāḥīn and other semisedentary tribes were subject to the Ottoman Penal Code (which remained in place until 1951Footnote 28) and to shariʿa law for personal status affairs concerning marriage, divorce, child custody, and inheritance. But despite falling under the jurisdiction of formal legal institutions, most villagers and many urbanites continued to adhere to informal (broadly tribal) mechanisms of conflict resolution.
Political and socioeconomic factors since the 1970s have culturally polarized East Bankers and Palestinian Jordanians. However, the distinction commonly drawn by outside commentators and even some Jordanians between “tribal” Transjordanians versus “nontribal” West Bankers has limited explanatory power in terms of the two groups’ historical observance of informal justice mechanisms. During the British Mandate, Arabs in Palestine also included individuals who identified themselves more or less emphatically as Bedouin (e.g., in the Negev), seminomadic tribesmen, settled fallāḥīn, and townsfolk, and were similarly reliant on informal justice mechanisms. Certainly, a greater percentage were settled and urbanized than in Transjordan and thus overall more familiar with civil laws and niẓāmī (civil) state courts. Only in Biʾr al-Sabʿ did British authorities in Palestine officially sanction tribal courts. Yet, as in Jordan, kinship sources of identification in Palestine informed the rationale behind customary laws. During Jordan's annexation of the West Bank (1948–67), Jordanian legislators repealed most British Mandate regulations and enforced the Jordanian penal code. Nonetheless, West Bankers continued to rely on iṣlāḥ representatives (figures who could mediate disputes and oversee a reconciliation), albeit at a reduced level and without patronage from the Jordanian monarchy.Footnote 29
CURRENT LEGAL STATUS OF TRIBAL DISPUTE RESOLUTION
Today, the status of tribal justice in the field of dispute resolution rests on the 1974 “Palace Convention.” Two years before the 1976 cancelation of Tribal Law, leaders of those tribes still subject to codified tribal law along with leaders of tribes that were not met with security officials at the palace and drew up recommendations for the convention, which amalgamated the range of ʿawāʾid (customs) used in dispute resolution by different communities and tribes across the kingdom. Al-Oweidi explains:
This system of 1974 was formulated by both the State through its officials, and the people through their Shaykhs and judges. . . . The State had made many concessions and recognized many ʿawāyid, but reorganized them. The Bedouins in turn found themselves recognizing many laws of the state. . . . The state normally promulgated its own laws, but here (1974) it took a line more suited to the nature of the Bedouin, and therefore far more effective, by incorporating the ʿawāyid into a new social system to the advantage of the State and Bedouins alike.Footnote 30
The main thrust of the convention was that customary procedures (ʿurf wa-ʿāda) were in all cases made subsidiary to civil law. Various regional customs—such as the payment of expenses for the provision of a truce (farsh ʿaṭwa)—were abolished. Yet tribal customs were approved for three types of cases discussed in more detail below: qatl (killing), ʿirḍ (honor cases), and taqṭīʿ al-wajh (violating the security promised by the guarantor of a truce). The Palace Convention has no official legal status within Jordanian civil law (which Jordanians who view tribal practices as unequal and detrimental to the development of national unity are quick to point out),Footnote 31 but it is commonly observed by members of many tribes, and enforced by police officers and administrative governors alike. The regulations of the Convention on certain tribal customs, such as the maximum amount of money that can be required as diya (blood money compensation), and the rules of the ʿadd ʿashāʾirī, whereby close relatives of the perpetrator of a blood crime are subject to jalwa (exile) from their hometown, were reviewed by the palace in 1987, 2006, and 2009, indicating that the monarchy continued to accept the validity of these practices, albeit in moderated form.Footnote 32 In 1987, the jalwa, which previously had extended to the khamsa (relatives who shared a common ancestor on the male side up to five generations back), was reduced to the second level of kinship, reflecting the practical difficulties involved in uprooting entire communities from their now sedentary lives.
The ʿawāʾid stipulated in the Convention are observed by much of the population today, and are not restricted to those categorized under the Mandate as Bedouin tribes (whose nomadic lives have in any case been all but extinguished by successful government sedentarization programs). The only remaining distinctive administrative feature of those Bedouin is that their original territories are still policed by the quwwāt al-bādiya, the unit established by Glubb in 1931.Footnote 33 Today, the king's tribal affairs advisor, Sharif Fawaz (the grandson of Amir Shakir bin Zayid, a Hijazi cousin of Amir ʿAbd Allah who was one of the three original Bedouin Control committee members in the 1920s), has an office co-located with that of the Bedouin Forces commander in Amman. While the remit of the latter is restricted to the bādiya territories (which comprise 83% of Jordan's land, but are inhabited by an estimated 6%–8% of the populationFootnote 34), the tribal affairs advisor is empowered to intervene into tribal dispute proceedings across the country when he sees fit—an authority he frequently exercises.Footnote 35
At the same time, rural areas now considered “Bedouin” retain perhaps half a dozen recognized tribal judges, all of whom carry a letter of endorsement from the Royal Diwan. They are authorized to practice in matters of blood, honor, and “face” (wajh), and in such areas certain customs pertaining to dispute resolution on these issues remain prominent. Members of the Bdul tribe in Um Sayhun, Maʿan province, told me how conflicting parties sometimes still pursue the khaṭṭ thalātha (three lines) procedure of resolving their dispute. Given a list of three judges’ names, one party will strike one name that they consider unacceptable from the list, the second strikes another, and they are left with the third judge to arbitrate their problem. Cases involving honor are also not uncommon: one family in the village told me that a tribal judge had recently ruled that the kin of a peeping tom pay them a staggering 40,000 JD for violating the ḥarmat al-bayt (sanctity of the home) by spying on a woman of the house in a state of undress, although there was some question over whether they actually intended to claim the entire sum.
Some see Jordan's incorporation of nomadic and sedentary tribes into the state structure by using incentives rather than merely coercion as a success story.Footnote 36 One aspect of the contemporary civil legal system that lends itself to supporting tenets of tribal tradition is the recognition of a ḥaqq khāss, or a “personal claim” pertaining to the victim of a crime, in addition to the ḥaqq ʿāmm, or public right of the state to prosecute offences. Ḥaqq khāss refers to the compensation that the injured party is entitled to claim through a civil lawsuit.Footnote 37 Legally, it is the victim him/herself rather than his/her family who exercises this right unless the victim has been killed or is underage, although in reality, and in keeping with the importance of communal kinship identification, most of the Jordanians I spoke to perceived the private right as the preserve of the family. Depending on social context, “family” (ahl) might refer to anything from the nuclear family to the extended tribe. If the family drops the personal right because they have reached an out-of-court settlement, then the court is entitled (and in popular, if not legal, understanding, obliged) to substantially reduce the penalty applied to the perpetrator. Indeed, this is frequently what happens. In the case of premeditated murder, for example, if the personal right is dropped, in accordance with the Jordanian Penal Code, the court's sentence may be reduced from death or up to twenty years in prison to as little as eight years in prison, or three years in the case of manslaughter. It may be further reduced in the presence of mitigating circumstances. With lesser crimes, where prosecution is contingent on the injured party filing a complaint, if the personal claim is dropped, then the case is dismissed.Footnote 38
Perhaps, with the passage of the 1974 Palace Convention, it was envisaged that as the nature of criminality changed, so its management would slip gently out of the hands of tribes and into the hands of the state. Owing largely to the effects of rapid urbanization and the market economy, this has proven partially accurate. Whereas in the past, the perpetrators of many crimes turned themselves in to tribal elders or were easily detected in rural communities, crimes committed today in the anonymity afforded by cities are subject to criminal investigation, and no traditional reconciliation can take place unless a suspect has been identified.Footnote 39 The most common crimes in Jordanian society no longer relate to stealing land or livestock but to robberies and various forms of financial fraud and corruption,Footnote 40 the prosecution of which is the preserve of the state. Undoubtedly with the help of civil law, the normative ethos toward theft of personal property has also changed. Antoun notes that under Ottoman suzerainty, brigandage and theft even in the settled north of modern-day Jordan were marks of valor. He quotes a villager of Kufr al-Maʾ: “in those days if you didn't steal, your wife wouldn't accept you.”Footnote 41 In contrast, the tribal shaykhs I interviewed in various parts of the kingdom maintained that they would refuse to mediate matters of theft where the perpetrator was identified; rather than citing the restrictions of the Palace Convention in explanation, they noted that, unlike some of the blood issues they play a part in resolving, there is no honor in theft.
TRIBAL LAW AS COMPLEMENT OR CHALLENGE TO THE STATE
This article thus far has pointed to the state taking the initiative by incorporating aspects of tribal identity, including those relating to customary laws, in order to control that identity. Within the past decade, however, particular manifestations of ʿashāʾiriyya in public and private life have prompted questions over whether the state is still in the driver's seat. This section looks at how dispute resolution practices today can play roles both supportive and undermining of state authority.
Today, when Jordanians from East and West Bank origins across the country—from the northern agricultural villages, to the southern bādiya tribes, to the urban centers of Amman, Zarqa, and Irbid—speak of ḥukm ʿashāʾirī, they are most commonly referring to two prominent customs. These are the temporary truce (ʿaṭwa) and final reconciliation (muṣālaḥa) processes between two families who have been brought into a state of conflict.Footnote 42 If the causes of many disputes differ from those of a century ago, the solution is invariably the same: a settlement between the families of the implicated parties, although for serious crimes the settlement does not prevent the civil court from pursuing a public prosecution. Depending on the severity of the issue and the feelings of the relatives, it may take days, months, or even years to achieve a muṣālaḥa, and ʿaṭwāt of various types must constantly be renewed until then. The process is conducted either by a shaykh or by family elders (wujūh) who, in the words of one interviewee, “possess the language of ʿaṭwāt.”Footnote 43
ʿAṭwāt are ubiquitous in Jordan. In part, this is attributable to the rising number of universally recognized crimes such as murder and assault, particularly in crowded cities, although no settlement is supposed to take place unless the guilty party has been identified, which does not always happen. However, it is not solely “traditional” crimes like these that are mediated via ʿaṭwāt; in fact, they are most commonly invoked for traffic accidents that cause death or severe injury, offenses which clearly did not exist before the 20th century. The circumstances of traffic accidents are recorded by the police, who write up reports for the insurance companies and the courts, but in the event that someone is killed, whether or not the driver is negligent, he is imprisoned for his own safety while an ʿaṭwa between the relevant families is signed, giving them time to negotiate the terms of a (financial) settlement.Footnote 44 If a settlement is reached or the offense forgiven—and normally one of those occurs unless the driver is deemed to have committed the offense intentionally or while under the influence—the family members of the deceased drop their personal right against the perpetrator. In the case of a settlement, the family accepts the insurance payout plus whatever else has been agreed with the offender's kin. In either case, no driving ban is imposed on the negligent driver.Footnote 45
A similar example of the usage of ʿaṭwāt to mediate contemporary incidents applies to machinery accidents at work. The king's tribal affairs advisor noted that in such instances the parties involved were entitled to take the case straight to the civil court but that the government did not forbid them from seeking an out-of-court settlement via an ʿaṭwa.
In his 2000 article on tribal processes, Antoun commented that in Jordan, “indigenous patterns of cooperation and conflict resolution do not have to resist the assault of centralized state power as they do in Iraq and Syria.”Footnote 46 In important respects, this observation remains valid. The Jordanian PSD, while not a unitary actor, overall projects the view that tribal custom complements the civil legal system, functioning as a sort of restorative justice and community policing service. For example, a December 2011 issue of the official police magazine, al-Shurta, featured an article on the cherished place of tribal tradition within Jordan's security structure. The author, who was the head of PSD public relations, noted:
Tribal customs preserve the restoration of social balance after a crime has occurred and complete procedures to the satisfaction of all sides by preserving community cohesion after treating the violation that has occurred. This is what we call restoring public order for society. . .What is remarkable here is that tribal customs are undertaken with the agreement and on the initiative of the conflicting parties without the intervention of the state in most cases. Even when [state] directives are executed, it is not with official force but requires the approval of a recognized wajh [respected individual] and kafīl [guarantor] to prevent the continuation of the conflict and to come down on the side of right.Footnote 47
Police spokespeople also maintain that the state retains overall control of tribal practices. This is manifest in the current ʿaṭwa protocol for blood crimes (not including traffic incidents). In addition to several pre-existing classifications of ʿaṭwa (for example, al-iʿtirāf when the perpetrator's family admits guilt, al-taftīsh when evidence of the crime is being sought, and al-iqbāl when it is determined that a conciliation will take place), the initial ʿaṭwa signed between two families immediately after a blood crime is committed to prevent revenge killings—which used to be known as the ʿaṭwa fawrat al-dam (boiling of the blood)—has now been dubbed the ʿaṭwa amniyya (security ʿaṭwa). It is enforced by the police as a stopgap measure until a third party mediator (wāsiṭat khayr) can be found by the perpetrator's family, and I was informed that every police station in the country has a department that registers the signing of ʿaṭwāt amniyya in its district.
The position of remaining tribal judges also gives some indication of state supremacy. In the early 20th century, nomadic and seminomadic tribes commonly recognized specialized tribal judges, chosen for their sound judgment, experience, and knowledge of religious and cultural strictures, while today the positions of the tribal judges are sanctioned by the king. I interviewed tribal judges in Karak, Maʿan, and Muwaqqar, who confirmed that while their predecessors enjoyed complete authority to sentence a perpetrator, they are officially restricted to dealing with blood, honor, and wajh cases referred to them via the Ministry of the Interior by their respective provincial governors. Cases are only referred when both parties to a dispute state their preference for a tribal settlement as opposed to a civil court ruling. In Karak, the judge gave me a recent example of how he managed the ʿadd ʿashāʾirī, whereby immediate members of a killer's family were exiled from their hometown, while the killer himself was dealt with via the civil courts. In Maʿan province the judge I spoke with noted that he had recently ruled that a mentally handicapped girl who had been raped and subsequently suffered a miscarriage should marry the perpetrator, adding that the man was liable to pay a sum of 60,000 JD to the girl's family as a penalty if he refused.Footnote 48 The agreement between the families involved was registered by the police.
In order to safeguard the legitimacy of the state and its security apparatus, the 1974 Palace Convention guaranteed that policemen who killed tribesmen in the line of duty could not be subject to tribal retribution (al-dawla qatīluha hāfī wa-ḥaqquha wāfī). Nonetheless, in recent years, critics claim that the PSD has undermined its own legitimacy by behaving like a tribe. In one such case, the PSD in Salt itself accepted an ʿaṭwa from the Khuraysat tribe along with some other Salti tribes after a police patrol officer inexplicably shot dead a member of the Khuraysat in November 2010 for driving a car with no license plates and not stopping at traffic lights. The dead man's kinsmen instigated an outbreak of violence and civil disorder in the town, prompting the PSD's acceptance of the ʿaṭwa, and though the PSD has refused to comply with the tribes’ demand to release the name of the police officer responsible, it has agreed to the payment of diya to the victim's family.Footnote 49
Incidents like the one in Salt can easily be interpreted as betraying the state's weakness in the face of 21st-century ʿashāʾiriyya. Toward the end of the last century, it was commonly believed that ʿashāʾiriyya was diminishing as a result of features of modern society such as rising levels of education, increased physical and social mobility, and the penetration of tribal territories by travelers and police. An alternative view, posited by Jureidini and McLaurin, was that “tribalism” was indeed decreasing, but that rather than being uniformly replaced by civic understandings of national identity, it was being supplanted by more restricted affiliations to the smaller clan (ḥamula), which was becoming the primary reference group.Footnote 50
But, as Antoun noted in Arab Village, “ideologically, structurally, and functionally, Arab descent groups form a continuum or an overlapping series rather than a set of discrete and inclusive units.”Footnote 51 Indeed, many Jordanians today suggest that ʿashāʾiriyya has come to represent a cover-all term for behavior motivated by patrilineal kinship links, even where the genealogical link is fabricated. Depending on the context and the individual, the primary reference group could be the qabīla (tribe), ʿashīra (subtribe), ḥamūla (clan), khamsa, or merely the extended family, but the deeper one can trace one's roots, the more social capital in Jordanian society one is likely to have.
Accordingly, it is not uncommon to hear urbanites in Jordan claim that “we have tribalism, but not tribes.” The reasons for the resurgence of tribalism cannot be attributed solely to state policies, but the state has played a prominent role in a number of ways. First, the prestige associated with Bedouin identity has encouraged other sectors of the population, including Palestinian Jordanians and Circassians, to embrace tribal customs. In some cases, Palestinian Jordanians band together with other families originating from the same Palestinian town to form tribe-like associations.Footnote 52 Second, the decline of oil revenues from remittances and of donations by Arab states, along with the privatization of many state industries since the late 1980s, has reduced state welfare in the shape of subsidies, public sector employment, and pensions—arguably encouraging Jordanians to turn back toward kinship networks in search of support.Footnote 53 Third, alterations to Jordan's electoral system have consistently favored kinship-based representation in traditional proregime strongholds. In the 2013 parliamentary elections, a limited system of proportional representation was implemented to allocate seats for political parties/coalitions, but these accounted for just twenty-seven of 150 seats. In this context, it can be argued that most of the current manifestations of ʿashāʾiriyya are of the state's making, although they are not necessarily under its control.
TAKING THE TRIBAL SHAYKH OUT OF TRIBAL DISPUTE RESOLUTION
Tribal shaykhs have long been associated with tribal dispute resolution, but as tribal structures are ever more ambiguous, so are the shaykhs’ positions. Under the British Protectorate, the position of many tribal leaders as key intermediaries between the authorities and the populace was bolstered. Their prestige continued in the postindependence era, and during King Husayn's reign, the Palace commonly deliberated domestic policy through the Royal Diwan's tribal council—which is not accounted for in the constitution—rather than through parliament.Footnote 54 The PSD and administrative rulers today still rely on links with headmen to smooth over incipient unrest, particularly in rural areas, and a handful of shaykhs are famed across the kingdom for their skills in de-escalating tensions and brokering settlements, but it was the shaykhs whose positions are officially sanctioned by the Royal Diwan who proved most willing to discuss their powers with me. Overall the shaykhs’ influence over their tribesmen is fading.
Most Palestinian Jordanian families have no shaykh per se in Jordan, and among many East Bank tribes the title has become more honorific than functional and is often accorded to more than one elder. In Kufr al-Maʾ, members of the major lineages refer to themselves as ʿashāʾir, like most in the fallāḥīn north, but they have never enjoyed the prominence of the likes of the Bani Sakhr and Bani Hassan, and villagers have recognized no shaykhdom since 1922, when the Pasha Kleyb Shreidah's resistance to Amir ʿAbd Allah was brought to an end by British air strikes. Instead, each major lineage has a number of notables (wujūh) who assume dispute resolution roles. As elsewhere, positions of prominence within the tribe are assumed by retired army officers, members of the municipal council, or even MPs, who are best positioned to solicit patronage for family members.
Even in Bedouin areas, the shaykh's role is no longer clear-cut, if ever it was. In Um Sayhun, a village in Maʿan Province, each of the five component clans of the Bdul refers to itself as an ʿashīra and nominally recognizes a shaykh. But when I asked one of them to elaborate on his role, he sat uncomfortably with the title, noting that his father, the previous shaykh, had died only a year before, and admitting that he had not yet received the official seal of the tribal leader from the state. A Bani Sakhr shaykh in Muwaqqar who had been elected MP predominantly by one branch of his large tribe, apparently trading in his social role for a more political one, told me that many of my questions on dispute resolution “belonged to history.” As if to demonstrate that this was the case, in the summer of 2013, authorities in Maʿan appealed to tribal shaykhs to intervene to bring an end to violent protests emanating from Maʿan University but the shaykhs’ efforts were unsuccessful. Added to this, some state-designated shaykhs in urban areas, like one I spoke with in the suburb of East Amman, stated no particular duties to their own tribesmen, but are periodically called upon by the authorities or by citizens to offer their wajh (protection) to the family of perpetrators of crime and to facilitate the peacemaking process.
Some of the shaykhs, elders, and tribal judges I spoke with conveyed a sense of bitterness that their roles had been usurped by politicians, by the administrative state, or by plain “common” folk. On the one hand, minor cases such as traffic accidents are regularly handled by immediate family members without the involvement of a tribal elder; on the other hand, major cases such as murder are sometimes taken straight to politicians to mediate. Indeed, in recent years a number of dispute-resolution delegations for high-profile cases have been led by the prime minister himself. And while many shaykhs or their predecessors won their positions through political roles, what they claim to bring to the process of dispute resolution within their communities is local knowledge that outsiders lack.
In a case that illustrates the mutable relationship between state, law, citizens, and ʿashāʾiriyya, the provincial governor of Zarqa exiled an entire fakhdh or subsection (1,300 men, women, and children) of one of Jordan's largest tribes (the Bani Hassan) from their homes in Hashimiyya in September 2011 after fighting between two subsections led to the deaths of three men. As noted above, in 1987 the jalwa practice, whereby relatives of a murderer are exiled from the district where the victim's kin live to prevent revenge feuds, was officially modified so that only relatives up to the second degree of patrilineal descent could be exiled on the orders of a tribal judge. Indeed, the tribal judge assigned to the Hashimiyya case told me he had recommended the implementation of the terms of the 1987 memorandum, but the governor overrode him, insisting that a more comprehensive banishment was necessary in the interests of preventing further bloodshed and preserving public stability.Footnote 55 In doing so he undermined the judge's authority while simultaneously reinscribing ʿashāʾiriyya by lending credence to the assumption that the victim's family would seek revenge as a matter of course.
INDIVIDUAL PERSPECTIVES ON COLLECTIVE SETTLEMENTS
Prior to the imposition of centralized authority, qaḍāʾ ʿashāʾirī in Jordan and elsewhere clearly prioritized collective community interests above personal ones, even if some individuals could and did personally profit from their implementation. But since the state has more or less successfully subsumed and transformed various tribal customs, tribal settlements have come to represent a more complex spectrum of interests.
There are some grounds for making certain assumptions about which sectors of the population might and might not be expected to favor ʿurf wa-ʿāda: those who claim membership in the most politically and socially influential tribes in Jordan (overwhelmingly though not exclusively East Bankers as opposed to Palestinian Jordanians) are often better positioned to secure effective wāsṭa (intermediation) that will produce a settlement favorable to them; those who live in close-knit rural communities have more incentives to mend bridges through tribal settlements when disputes occur within the community; women, whose rights and preferences are often trampled upon in customary processes, may have good reason to prefer civil proceedings. But these generalizations, based on broad assumptions about the defining features of individuals’ identities, fail to demonstrate the range of competing values, obligations, and traits that contribute to individuals’ attitudes toward ʿurf wa-ʿāda. Jordanians today suggest diverse reasons for observing tribal settlements; this final section explores some of them.
Complying with Hegemonic Values
It would be grossly inaccurate to suggest that Jordanians are united in their support of qaḍāʾ ʿashāʾirī. There is a strong current of opinion against it, voiced particularly but in no way exclusively by young urban professionals whose attitudes toward tribal settlements range from shame to contempt to disbelief that they are still observed. However, ʿaṭwāt and muṣālaḥāt are observed even by those opposed to them in certain cases, such as murder, because the state requires it, and in other cases because they are promoted by influential sectors of Jordanian society (for example, injuries caused by traffic accidents). As an example, an affluent young Palestinian Jordanian woman educated in the United Kingdom who declared herself vehemently opposed to all manifestations of ʿashāʾiriyya recounted how a close relative had been killed in a car crash by a drunk driver two years previously. Her family had tried to prosecute the culpable driver, but his family—which belonged to a politically prominent subsection of one of the major East Bank tribes—applied strong pressure on them (tantamount to menace) to drop the personal right and accept a financial settlement, which eventually they did.
Hedging Bets
Legal anthropologists have highlighted examples of communities where individuals, when presented with a choice between seeking formal justice and informal settlements, pursue a hedging strategy, opting for whichever they believe will ensure them the most preferable outcome.Footnote 56 In Jordan, the civil courts are notoriously slow, and all of the tribal judges I spoke with emphasized that they were able to conclude cases far more rapidly. In this context, a young man in Maʿan province, whose face had been badly scarred with a broken bottle in a fight with two other men, told me how his family had sought permission from the authorities for a ruling from a local tribal judge so they could seek rapid cosmetic surgery for him. The families of the other parties to the fight agreed and the judge ruled that the victim be paid 5,000 JD by each of the perpetrators.
However, the cases on which tribal judges can rule are limited. In the vast majority of serious cases where ʿaṭwāt and muṣālaḥāt are sought without the involvement of such tribal judges, it is not so much a case of either the civil court or the tribal route, but both/and, since the accused must generally be tried in the civil court even if his case is subsequently dropped due to a private agreement.
Affirming Cultural Heritage
In this light, the affinity for tribal procedures expressed by some of my interlocutors had less to do with their calculation of outcomes and more to do with their perception of what was culturally important to them. So it seemed with members of the banished subsection of the Bani Hassan in the Hashimiyya case. They complained bitterly to me that the banishment of an entire fakhdh was a distortion of tribal custom (ignoring the fact that the 1987 ruling was itself a “distortion” of the pre-existing practice) and yet maintained that the jalwa itself was a “good” thing, and sought redress primarily via senior tribal intermediaries and the tribal judge.
In some cases, as Layne suggested with respect to ʿashāʾiriyya more broadly, observance of qaḍāʾ ʿashāʾirī is doubtless perceived exclusively, that is, as a way of celebrating the particular heritage of East Bank customs as distinct from Palestinian ones. Given the close similarities between tribal justice traditions among the Bedouin in Jordan and those from the Negev (tens of thousands of whom took up residence in Jordan after 1948), this is something of a misnomer.Footnote 57 In any case, enthusiasm for the rituals involved in ʿaṭwāt and muṣālaḥāt expressed by some of my Palestinian Jordanian interlocutors (albeit those of more conservative backgrounds) prove that they equally cherish these customs as part of their heritage.
RESISTING THE STATE
At one end of the spectrum, then, those opposed to ʿurf wa-ʿāda observe them in certain instances due to the exigencies of the state. At the other end, however, individuals can use adherence to ʿurf wa-ʿāda as a means of resisting aspects of state power. Tribal elders, for instance, periodically dispense tribal rulings that fly in the face of state directives as a means of asserting their own authority. In Mafraq, the shaykh of one of the Bani Hassan subsections vented his frustration about the king's tribal affairs advisor's interference in cases in his district, implying that the latter was insufficiently versed in tribal law to occupy the post. He added that despite the official ban on shaykhs requiring expenses for brokering an aṭwa, he had recently imposed an extremely hefty fee on the family of a perpetrator whose crime he considered particularly distasteful: he had killed six people while driving drunk.
Occasionally, resistance can involve violent confrontation with the state, such as the case cited in Salt, when the dead man's clan pledged revenge to the authorities if they did not cede to their terms for truce. But more often, it is of a less coercive nature. For much of the populace, it is characterized by avoidance of the authorities. While the state has taken ownership over the exercise of tribal justice particularly with regard to serious offenses, a number of my interlocutors told me that half of the “crimes” perpetrated in their communities never reached the police and were dealt with via customary methods.
In a leafy suburb of West Amman where I lived for some months, some residents suggested that this was due to the level of tamāsuk (social cohesion) within their neighborhood, which meant that they could smooth over their own disputes. But in Jebel al-Nadhif, a run-down and overcrowded district inhabited overwhelmingly by Palestinian Jordanian ex-camp residents and their families, where until a few years previously there had been no local police station, the reasoning presented by several individuals differed. They suggested that residents avoided the police whenever possible and conducted ʿaṭwāt and muṣālaḥāt privately, not due to any overwhelming sense of tamāsuk, but due to an instinctive wariness of the authorities. Nowhere was it suggested to me that this wariness was attributable to fear of police brutality (and given my focus on the PSD this was a matter of considerable interest to me); rather, it was due to resentment about the state's encroachment into what they consider the “private” sphere of their lives, or because they wanted to keep a low profile.
This desire to stay below the radar of the authorities certainly extends to the Iraqi refugee population in Amman, many of whom are working informally and illegally, and are on the alert for random workplace visa checks staged by the police. Iraqi friends told me that if they were involved in any sort of “trouble” they would seek the assistance of a respected Jordanian tribal elder in their community to represent them. The same hesitancy to have direct contact with the authorities was apparent in conversations with a Palestinian Jordanian woman whose immediate family had moved to a village in Maʿan some thirty years previously and whose husband subsequently died. She reproached me for insinuating that her family could be involved in any illegal activities, but said that if her son was (hypothetically) to be involved in a fight, she would apply directly to the shaykh or representative of one of the local clans (all of whom she knew) for help. When I put it to her that there might be an instance where the police could represent her interests better than the headmen, she looked uncomfortable and repeated that everybody knew she didn't like problems.
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The reasons cited above are not mutually exclusive: depending on the context, the same individual might cite different incentives for observing ʿurf wa-ʿāda. Those who expressed enthusiasm for the preservation of tribal settlements in the abstract on cultural grounds might be quite opposed to their imposition if they themselves were personally implicated in a crime, either as victim or perpetrator. But ultimately, if and when individuals do become party to a dispute that needs to be settled (financially and/or legally), the decision on how it will be managed is often taken out of their hands by their own kinsfolk, precisely because tribal settlements ultimately remain a collective arrangement, even if they are rationalized by individuals in numerous ways that do not necessarily prioritize community interests.
CONCLUSION
To return to the issue of neighbors, tribal dispute resolution in Jordan today shows evidence of continuity with the past, but can no longer be understood exclusively as a community activity. In the rural village described by Antoun in 1960, multiplex relations were the norm: villagers were tied to each other by geography, lineage, intermarriage, reciprocal hospitality and generosity, and employment. These links provided an immediate incentive for reaching informal resolutions to disputes. Today, barely any such communities remain. Even Kufr al-Maʾ is now a small town; its population has grown from 1,800 in 1960 to 12,160 in 2011.Footnote 58 While it remains overwhelmingly homogeneous in the sense that the three major lineages discussed by Antoun continue to dominate its social and political affairs, and very few other families have moved into the village, multiplex relations have naturally decreased due to the proportion of villagers who work outside of the village, particularly in the armed forces. And while social cohesion is apparent in the activities of the maḍāfa (guesthouse), it is decreasing. An elder informed me that whereas in the 1960s tribal wujūh had been quick to intervene to help “right a wrong,” these days they were keen to stay out of the matter unless their assistance was explicitly sought.
Changes in lifestyle, however, have been accompanied by the evolution rather than the abandonment of customary procedures. Across the kingdom, the national proportions that many tribal settlements now assume reflect the increased occurrence of disputes between parties from different localities, brought coincidentally together by work, travel, or fate, who refer the resolution process back to relatives in their place of origin. They also reflect the increasing inclination of many Jordanians to encourage well-known personalities to mediate their cases as a mark of prestige. These trends indicate that the reasons for observing customary laws are diverging from those commonly cited by legal anthropologists who have restricted their studies to bounded communities. They also demonstrate that the balance of control between state, citizens, and kinship units over what form qaḍāʾ ʿashāʾirī takes is not fixed: it has been renegotiated in accordance with political agendas, economic necessities, and demographic fluctuations, and in all likelihood will continue to evolve.
This article has argued that the prevailing adherence to customary dispute resolution processes in Jordan results from a combination of top-down policies and bottom-up practices. But I have also highlighted that this type of study calls for mixed methods of enquiry in the sphere of political ethnography, and I see plenty of scope for further research in this area. The lack of attention paid by social and legal anthropologists to the contemporary application of tribal laws not only in Jordan but also in other parts of the Middle East encourages the impression that tribal justice has been effectively eclipsed by modernity, but this is far from the case. In this light, I want to end by noting that ethnography today is not—and certainly should not be—an ethnocentric pursuit primarily concerned with explaining the peculiarities of “primitive” cultures. Rather, it takes on the daily practices of citizens in modern states. The passing of nomadic lifestyles and the state's official abolition of tribal law in Jordan should not presage an end to studies on tribal dispute settlements; rather, they call for a reorientation of such studies to take account of the factors that have reshaped such settlements and given them new significance for citizens.
