There has recently been an upsurge in anthropologists' interest in law, with North Africa and the Middle East taking a prominent position.Footnote 1 One of the foci is the coexistence of multiple sets of legal practices, and the ways in which people negotiate between different legal “systems.” This emphasis closely mirrors the more general shift in anthropology from “discourse” to “practice,” and shares both its strengths and weaknesses. Among the latter is that the resulting emphasis on “legal pluralism” (Griffith Reference Griffith1986) runs the danger of eroding the concept of law as such, subsuming it within more general and all-encompassing notions of “conflict resolution.”Footnote 2 Similarly, there is a risk that one of the most striking aspects of legal procedure, namely the value placed on the act of making rules, is being neglected, and the actual content of local law codes and their underlying principles are receiving less attention than they deserve. As a result, “customary law” is more often implicitly defined by what it is not.Footnote 3 Here, my aim is not to shift the focus from “practice” to “discourse,” but rather to understand the internal logic of one such set of ‘customs,’ and to consider the act of making law in itself as a special kind of practice (see also Comaroff and Roberts Reference Comaroff and Roberts1981: 15–16).
In order to do this, I will revisit one area that, in the nineteenth century, was among the first to be singled out for its legal tradition, and that came to influence much subsequent writing on North African “legal systems”: Kabylia, a Berber-speaking region of northeastern Algeria. I shall argue that, although Kabyle law codes have long been rejected as colonial inventions, they deserve study in their own right. This is so partly because they illuminate Kabyle assumptions about order, justice, legal competence, and “legal pluralism” that are of intrinsic interest for the study of local concepts of law. More important, however, is that neither more than a century of colonial rule, nor four decades of living under an independent and certainly jealous nation-state have fully curbed the local propensity to issue laws. Indeed, the most recent series of local law codes was produced in the troubled decade of the 1990s. Although these more recent laws clearly adapt forms and address concerns very different from those faced by Kabyle villages in the late nineteenth century, this continued emphasis on law-giving, and the striking continuity of several basic notions that underpin the legitimacy and validity of these codes, are puzzling. They provide insights into the political particularities of Kabylia that go beyond clichés of “innate Berber democracy,”Footnote 4 and also underscore the significance and particularity of local “legalism” that is both more and less than just another way of resolving conflicts.
THE HABITUS OF MILITARY ADMINISTRATION
Throughout the nineteenth century, publications on Kabyle law codes were so numerous that, at least from a French point of view, the notion of ‘Kabyle-ness’ became virtually coterminous with that of having and applying independent, ‘secular’ customary law. Even before the French army conquered Kabylia in 1857, the French public had been fascinated by these sedentary hill-farmers, in whom they all too easily recognized ideal French peasants attached to soil and independence. As Berber speakers, the Kabyles were seen as less Islamicized than their Arabic-speaking neighbors; the existence of local ‘secular’ customary law was taken as a further proof of their materialism and “independent spirit,” and thus of their susceptibility to French influence. This assumption clearly underlies the first paragraphs of the best-known nineteenth-century French ethnography of Kabylia:
In Algeria, the name ‘Kabyle’ is given to the populations of Berber race who live in the mountains on the Mediterranean coast … Despite the common origin of these populations, their political and social state is far from identical … Some of them, who surrendered long ago to successive governments, have lost even the memory of their origin; they say and sincerely believe that they are Arabs, only speak Arabic, submissively obey the chiefs nominated by the rulers of the country, and submit without second thoughts to the prescriptions of Muslim law. Others, although they accept the Muslim code and the authority of chiefs nominated without their assistance, have kept some of the democratic habits that are particular to their race. These habits temper in practice the excessive arbitrariness of the absolute power; but they are acted out without fixed rules and their efficacy always depends on the power of the government to enforce its decisions. Others, finally, have been able to conserve, thanks to a happy combination of circumstances, their independence until today, either totally, or at least without essential restrictions. They govern themselves through very democratic institutions, and regulate all the transactions of civil life according to ancient customs transmitted by tradition (Hanoteau and Letourneux Reference Hanoteau and Letourneux2003 [1872–1873], vol. 1: 13).
Two out of the three volumes that constitute Hanoteau and Letourneux's monograph consist of a systematic compilation of “Kabyle customary law” (qânûn, pl. qawânîn), according to the categories of the Napoleonic Code.Footnote 5 This compilation was partly motivated by the barrister Letourneux's assumption that there had once been an ‘ur-qânûn’ governing all of Kabylia and that careful labor could determine and reestablish it, to the benefit of all (Hannemann Reference Hannemann and Mahé2003). Yet it also had a practical purpose: as a military officer in charge of administering central Kabylia, Hanoteau was well aware of the difficulties that the infinite local variations of Kabyle customary law codes had caused the French administration (Hanoteau Reference Hanoteau1923; Bernard and Milliot Reference Bernard and Milliot1933).Footnote 6 Although by the time Hanoteau and Letourneux had finally completed their ambitious project military rule had been replaced by civil administration on the French model, their monograph still served as a key unofficial reference. Copies of it were found in local courts applying French law, and French—and increasingly also Kabyle—magistrates were encouraged to consult it when they saw fit to do so. “Customary law” had thus been promoted, if not to “state law,” then at least to an official standard recorded and sanctioned by the colonial state.Footnote 7
In establishing this corpus, Hanoteau and Letourneux transformed their material in two significant ways. By following the categories given by the Napoleonic Code, they classified existing codes according to an alien principle, they established generally applicable standards where none existed beforehand, and, in many cases, they deduced general principles from case law. Secondly, they based their findings almost exclusively on “tribal codes” that they and other members of the French military administration had collected in the area. Yet it seems unlikely that in the 1860s, the time of Hanoteau's research, tribal codes existed, or that local tribes acted as judicial authorities in the ways village communities did.Footnote 8 Thus, all of the codes used in the ethnography were clearly produced as a response to demands of the military authority, thereby creating “tribal law” as a new genre. Most of these “tribal codes” reproduce the regulations in force in the largest village in the tribe (Bernard and Milliot Reference Bernard and Milliot1933). The codes submitted to the French authorities were in Arabic, frequently written by the local imam or other religious scholars, and it is often difficult to discern whether the influence of Islamic law, which is apparent in all cases, stems from practice or from attempts by local religious scholars to produce what they conceived to be proper law.
Hanoteau and Letourneux's method was duly criticized by Bernard Luc in his lengthy Reference Luc1911 thesis on Kabyle customary law, and by Bernard and Milliot in a frequently quoted 1933 article. In 1950, Bousquet complained that the “veneration” of Hanoteau and Letourneux had gone too far, and that the contemporary validity of the codes, if they were valid at all, derived from the fact that the French administration had long imposed them on Kabylia (Reference Bousquet1950b). After independence in 1962, the French focus on Kabyle customary law was further discredited, being seen as an attempt to divide and rule, and as representing the Kabyles as not truly Islamic, and as linked to their Arabic-speaking neighbors and fellow Algerians by nothing more than mutual incomprehension and hostility (e.g., Lazreg Reference Lazreg1983). This rejection of “customary law” as a valid object of study coincided with changing trends in anthropology, away from a focus on rules toward a concern with strategies.
Thus, in his Outline of Theory of Practice, published in 1972, Pierre Bourdieu could deal with Kabyle customary law in little more than a short paragraph, rejecting it as a sociological crutch intended to produce retrospectively coherent accounts of far more complex social interactions. What local informants might offer to the anthropologist as “the law” was in fact nothing more than an abstract account of an unconscious “template” for social action, or an emergency measure in rare cases where “common dispositions” proved insufficient: “Talk of rules, a euphemized form of legalism, is never more fallacious than when applied to the most homogeneous societies … where most practices, including those seemingly most ritualized, can be abandoned to the orchestrated improvisations of common disposition: the rule is never, in this case, more than a second-best intended to make good the occasional misfirings of the collective enterprise of inculcation tending to produce habitus that are capable of generating practices regulated without express regulation or any institutionalized call to order” (Reference Bourdieu1977 [1972]: 17).
“Law,” according to Bourdieu, did not and could not exist in a society unless it was governed by permanent institutions and hierarchies rather than, as he perceived Kabyle society to be, by everyday interactions that renegotiated hierarchies on a daily basis (see also Bourdieu Reference Bourdieu and Peristiany1965).Footnote 9 Clearly, Bourdieu's overall concerns were much broader than questions pertaining to Kabyle customary law codes, and his main quarrel was with structuralism rather than with Hanoteau and Letourneux. Yet the Kabyle qawânîn happened to be in his line of fire, and were duly shot at.Footnote 10
Meanwhile, the authority that produced qawânîn, the village assembly or tajmaɛt, continued to attract interest (Mahé Reference Mahé1993; e.g., Kinzi Reference Kinzi1998), albeit stripped of one its most central features: its capacity to issue and reinforce communal rules, hence depriving it of the status of a legal ‘institution’ altogether. The tajmaɛt thereby became a symbol for Kabyle democracy, seen not as a functioning political system whose legitimacy remains partly independent of state jurisdiction,Footnote 11 but rather as a sign of a ‘cultural’ affinity and disposition easy to integrate into the colonial and later the independent Algerian state, or even to adopt as an ideal model for the latter (e.g., Chaker Reference Chaker1999).
Today, it seems either reactionary or naïve to argue that we should return to study Kabyle qawânîn. Yet, notwithstanding the anthropological debates just sketched, and, more importantly, despite a century of colonial rule, forty years of voluntarist ‘modernity’ and profound social, economic, and cultural changes, not to mention a series of violent upheavals whose intensity defies contemporary Western European imagination, we nonetheless find that laws, codes, and rules remain omnipresent in Kabylia. Even now, Kabyles place considerable emphasis on villages having their own written law codes; codes are still being produced, or at least villagers insist that they ought to be. Many such codes appear on village websites along with other historical and ethnographic information, as if to constitute a proof of proper “village-hood.” Contemporary problems tend to be dealt with through the more or less official promulgation of new codes, and although in many places the traditional village assembly has been replaced by new associations, most Kabyle villages boast at least some kind of communal representation and authority that tries to maintain a minimum of communal life and regulate the village's relationship with the outside, including the state.
If nothing else, the importance attached to contemporary codes should encourage us to question past assertions of their irrelevance. If it is true that most of the customary codes recorded by Hanoteau were written at his instigation, it is equally true that they were written with considerable speed and that they are remarkably different from Islamic law.Footnote 12 Masqueray (Reference Masqueray1983 [1886]) explains this by the emphasis Kabyles placed on exact memorization of codes by elders, according to a set model.Footnote 13 Furthermore, despite their diversity, these codes point toward underlying commonalities in notions of legal authority and justice. First attempts at recording sparked other, later versions that were produced spontaneously (Milliot Reference Milliot1932; see e.g., Milliot Reference Milliot1922; Reference Milliot1926; Reference Milliot1928; Reference Milliot1930; Bousquet Reference Bousquet1949). To claim that these codes were invented from nothing for the benefit of the French military administration seems to credit French military officers with quite magical creative powers. We should therefore understand the codes as more than just a window into the colonial mind; they can provide glimpses of shared Kabyle notions of justice, community, and communal space, some of which are still relevant today.
THE VILLAGE CODES
Many qawânîn were published by French officers and researchers before and after Hanoteau, and several are appended to his monograph.Footnote 14 The vast majority of these publications are translations, and most of the originals are in Hanoteau's private archives, to which I have not had access. However, some of the originals are reproduced in Bernard and Milliot (Reference Bernard and Milliot1933). Further, ten qawânîn are published in Kabyle as part of language courses by Hanoteau (Reference Hanoteau1858) and Ben Sedira (Reference Ben Sedira1887), although, taking into account the context of their production as written texts, it is questionable whether these are any more ‘original’ than Arabic transcripts. Milliot includes copies of more recent qawânîn, written originally in Arabic or French, in his own articles (1922; 1926). Although these texts can give us a general impression of the form of these transcripts, as soon as we go beyond them we are obliged to work with documents once removed (or twice removed, counting the initial process of translation and recording), whose French translations alone give them an exaggerated appearance of unity. Words key to the French translations—amende or “fine” is the most obvious case in point—are hardly ever found in the Arabic and Kabyle originals.Footnote 15 Furthermore, the many texts only provide information on a relatively small proportion of Kabyle villages; they are concentrated in specific areas, such as Hanoteau's administrative district around Larbaa Naïth Iraten and parts of the Soummam valley.
Kabylia is heterogeneous, and its ‘true’ boundaries are still hotly debated. Various regions in Kabylia had very different experiences of both the Ottoman and the French states, which clearly had varying impacts on local attempts at legislation. Thus, although virtually all qawânîn acknowledged the presence of an outside power, until full French military occupation in 1857, this presence seems to have been felt most strongly in the Soummam valley and in the plains around Tizi Ouzou, and felt least in relatively inaccessible areas such as Larbaa Naïth Iraten. Yet it appears that, generally, the qawânîn were never conceived in isolation, but rather as conscious supplements to other forms of laws and rule that were, if only through temporary migrations, familiar to most Kabyles. Indeed one of the most striking features common to all qawânîn analyzed is that they posit the village as a legal space and legal community set apart from the outside world, beyond whose boundaries other norms apply: the qânûn of the neighboring villages, state law, and above all, Islamic law (some of whose representatives were paid by the state). Several codes note that in all external matters and with respect to strangers, Islamic law applies (Hanoteau and Letourneux Reference Hanoteau and Letourneux2003, vol. 3: 233–321) The qânûn of Ighil Imoula includes a short list of neighboring villages where transgressions are punished “as if they had taken place in our village,” suggesting that this was unusual (ibid.: 242). None of these different ‘laws’ seem to have been perceived as existing in isolation. All were seen as distinctive, however. Thus, the code of Taourirt Amoqran, published by Aucapitaine in 1863, happily states, “God says: thieves should have their hand cut off, but in our village they shall pay fifty riyals” (1863: 281).Footnote 16 All qawânîn are promulgated in the name of God as well as in the name of the village, while frequent reference is made to local religious scholars, the qâdî, and the Qur'ân, with the sultân sometimes in the background. Although these invocations might at first appear contradictory, they seem merely to point to the various layers of legitimacy and justice within which Kabyles attempted to act lawfully.Footnote 17
Most codes consist of a short introductory paragraph followed by a list of payments or other punishments for sets of actions, which vary in detail from one village to the next. The money collected is spent on the improvement of village infrastructure or on livestock to be slaughtered for collective meals. A relatively large proportion of all codes are concerned with collective action, ranging from punishments for absences from weekly village assemblies, funerals, and common prayer, to sumptuary laws, agricultural regulations, and provisions for communal labor on village infrastructure. Payments for failing to attend collective events are comparatively low, but the events at which attendance is compulsory are numerous. Some codes regulate village membership more formally: in Taslent, villagers who left the village to settle elsewhere had to pay 10 riyals to the village assembly, and among the Zouaoua 25 riyals were owed upon joining another village (Bernard and Milliot Reference Bernard and Milliot1933). Central to codes is the reinforcement of respect for them and for those in charge of representing them; insults to people mandated by the village council are punished by heavy payments to the village assembly. Conversely, provisions are made for officials who do not fulfill their function properly or deploy village funds to gain a personal following, a danger which seems to have been keenly felt. More generally, there are many provisions against internal dissent, ranging from fines for insults and quarrels to the condemnation of excessive family solidarity that might undermine village unity.
Sumptuary laws are a recurrent feature. Similar provisions are common throughout the Middle East, and are by no means specific to Kabylia.Footnote 18 What is striking in the Kabyle case, however, is the gravity of the fines imposed on those who infringe them. In Guighil Gueqqen, for example, paying a dowry either higher or lower than the fixed sum entails the payment of 100 riyals, a sum matched only by the fine for homicide (Hanoteau and Letourneux Reference Hanoteau and Letourneux2003, vol. 3: 233–34). In the same village 20 riyals are to be paid if dependent women are allowed to marry below their status (this village was inhabited by marabouts or religious families, who avoided giving their daughters to non-marabouts), the same amount imposed, in the same sentence, on anyone who sells land to strangers. All codes collected in the Soummam valley include elaborate prescriptions that fix dowries and marriage expenses (Masqueray Reference Masqueray1983: 264–324). Several codes aim to keep the village assembly involved in all lifecycle rituals. In Beni ‘Ali Ouharoun, all marriages concluded without the presence of the village notables incur a fine, if only of one riyal (Bernard and Milliot Reference Bernard and Milliot1933: 34). Among the Aït Iraten, all important life cycle rituals—births, circumcisions, marriages, and deaths—oblige payment to the village assembly (ibid.). All village men are expected to attend funerals, and absences are generally fined (Hanoteau and Letourneux Reference Hanoteau and Letourneux2003, vol. 3: 233–321; Masqueray Reference Masqueray1983: 263–324).
Other recurring provisions regulate land sales to strangers, hospitality, and other possible relations with outsiders. The village assembly retains the right of preemption in land sales, and ensures that no land is sold to strangers. More generally, every important transaction concerning village land must be brought before the village assembly. Heirs to land who reside outside the village cannot enter into possession unless they come to live within village boundaries; otherwise, the land in question falls to the tajmaɛt (Aït Iraten code, in Bernard and Milliot Reference Bernard and Milliot1933: 40). Relations with strangers are generally well regulated, and hospitality—or the supervision of potentially disruptive strangers—is every villager's duty: “If strangers come and a villager has only consented to receive them after they have walked past five houses, he shall pay one riyal” (Taourirt Amoqran code, in Aucaptaine 1863: 282).Footnote 19 In the Soummam valley, the duty to lodge and feed hosts is passed on from villager to villager according to a set schedule, and failure to fulfill these duties leads to heavy fines (Masqueray Reference Masqueray1983: 263–324). Hosts are responsible and must pay for their guests’ misdeeds, yet the village as a whole is responsible for the guest's safety, and in some villages, also his sustenance.
The fines for theft committed with the help of strangers brought to the village for this purpose are as much as tenfold higher. Appeals to outside sources of arbitration and justice are also frowned upon: “Whoever goes to the sultan to complain about a resident of the village in order to eat his goods or to have him put in prison shall pay ten riyals. In addition to this, he shall pay the ransom for the prisoner, the presents made to the sultan to release him and all other costs incurred” (Guighil Gueqqen code, in Hanoteau and Letourneux Reference Hanoteau and Letourneux2003, vol. 3: 233).
Even worse are appeals to other villages and tribes. The qânûn of Taourirt Amoqran (Aucapitaine Reference Aucapitaine1863: 281) threatens confiscation of all property and banishment—the worst possible punishment—to “whoever introduces the enemy and endangers public safety” during village quarrels and conflicts; elsewhere, 12 riyals are levied on those who appeal to “other villages' justice” when they feel slighted (Beni ‘Ali Ouharoun code, in Bernard and Milliot Reference Bernard and Milliot1933: 33). The qânûn of Taslent more generally levies 50 riyals—half the amount incurred for homicide—to “whoever delivers the honor of the village to strangers” (Hanoteau Reference Hanoteau1858: 319).
Compared to other Middle Eastern and North African examples, Kabyle village codes permit the village council an astonishing degree of involvement in family matters.Footnote 20 Although homicide is generally dealt with in cursory fashion, many codes contain elaborate sanctions for villagers who kill their relatives in order to inherit their property. The code of Guighil Gueqqen is exemplary here: “Whoever kills one of his relatives in order to inherit from him, will have his property confiscated as well as that of his victim, unless the latter has any other heirs. This is so that the people of the jama‘a [or tajmaɛt, village assembly] refrain from committing such murders.” (Hanoteau and Letourneux Reference Hanoteau and Letourneux2003, vol. 3: 237).
As Alain Mahé (Reference Mahé1993) points out, village law intervenes here where feuding is impossible. However, this explanation does not seem sufficient by itself: even minor internal family conflicts are treated as an offence to village order. In Guighil Gueqqen, “whoever speaks unseemly words to his father, pays one quarter of a riyal” (Hanoteau and Letourneux Reference Hanoteau and Letourneux2003, vol. 3: 236), just as if he had insulted another villager. Families, or even households, seem not to constitute independent legal spaces outside village jurisdiction. Other provisions insist on the maintenance of proper family ties: high payments are imposed for neglecting to care for ageing parents in Taourirt Amoqran (Aucapitaine Reference Aucapitaine1863: 284), and for homosexuality in Beni ‘Ali Ouharoun (Bernard and Milliot Reference Bernard and Milliot1933: 32). In the maraboutic village of Guighil Gueqqen, lesser fines punish neglecting the education of a son after he has passed a certain age (Hanoteau and Letourneux Reference Hanoteau and Letourneux2003, vol. 3: 236). Notions of the inviolability of the house and the family that run through much Arab customary law (Stewart Reference Stewart2000; cf. Dresch Reference Dresch2006) thus do not seem applicable; rather, they are conferred to the village as a whole.Footnote 21
Despite considerable variation in the offences—ranging from quarrels, insults, spying on women, and singing bawdy songs, to fights, theft, rape, and murder—all codes share one basic feature: any offensive act committed within the village gives rise to not only one, but three types of reparation. One, often the largest, is to be paid to the village as represented by its assembly; one to the victim whose personal space has been invaded, independent of any material damage that he might have suffered; and one to make up for the material damage caused. This last is the item most frequently omitted, as if it fell outside the village community's prerogatives to intervene in personal arrangements between villagers. Both the honor of the village and its inhabitants, however, are clearly of public concern. Thus, the qânûn of Guighil Gueqqen states, “Whoever is convicted of theft in a house pays 30 riyals fine [to the village], 10 riyals reparation [to the owner of the house] and returns the stolen objects [to the owner of the objects]” (Hanoteau and Letourneux Reference Hanoteau and Letourneux2003, vol. 3: 238). Similar provisions are made in Ighil Imoula: “Whoever makes a hole in the wall of somebody else's house, whether he enters or not, whether he takes something from it or not, pays 50 riyals to the jama‘a and 10 to the owner” (ibid.: 241).
This logic is carried to its extreme in cases of homicide, which only incurs a fine if it is committed within the village, and further reparation for which is left to the families concerned, or, in some cases, the qâdî, or both. Payments to the village community vary with the circumstances of the crime: theft is punished more heavily if it was committed at night or during Ramadan and assembly days. Some codes further state that villagers are obliged to inform the tajmaɛt of all crimes that have taken place; otherwise they will themselves incur a fine equal to that inflicted on the culprit.Footnote 22
A standard feature of customary law throughout the Middle East and North Africa is that reparations due to the offended party depend on the nature of the offence rather than on the material damage caused, but it is less common for reparations to be due exclusively to a bounded village community.Footnote 23 However, comparable provisions are made throughout the region for offences committed in spaces that are set apart, either as collectively recognized religious sanctuaries, or by common agreements such as market guarantees.Footnote 24 Kabyle village codes imply a similarly protected status for village space and for village communal activities, and an importance attached to the capacity of the village community to protect its own space and to maintain order within it.
Since punishments range from fines, to confiscation, to banishment, property is required in order to be able to ‘play the game.’ Fines inflicted on people who cannot pay are to be paid by their host. The underlying assumption here is clear: people who cannot pay do not have a house and are by definition not full members of the village community, and thus are not personally accountable to the community for their acts. As several codes make clear, they nevertheless remain subject to state law and feuding. These dependent people fall into three categories: serfs or slaves, guests, and dependent kin, including, at least notionally, all women of the house.Footnote 25 Yet again, the touchstone for kin liability is neither age nor friendly relations, but rather independent property ownership: “If a man from our village has an insubordinate son who has left the paternal house, if this son steals and has to pay, his father shall pay for him. But if the son has separated his interests [i.e., his property] from those of his father, he shall pay for himself” (Guighil Gueqqen code, in Hanoteau and Letourneux Reference Hanoteau and Letourneux2003, vol. 3: 239).
More serious punishments range from smashing the culprit's roof to confiscating all his property to perpetual banishment. It seems these punishments are conceived as essentially similar, albeit of differing severity. The collective smashing of somebody's roof deprives him not only of an important part of his material assets, but also symbolically threatens his capacity to protect his own space, the basic condition for true ‘ownership’ and full-fledged village-hood.Footnote 26 Confiscation accomplishes much the same thing, since it reduces the culprit from house-owner to dependent client, and renders him unable to pay fines to redress his own acts, and thus incapable of being fully responsible for himself. Not surprisingly, confiscation seems to have been conceived as the first step to banishment: as the qânûn of Taourirt Amoqran states, if a person whose property is to be confiscated “does not own anything, he shall be banned forever” (Aucapitaine Reference Aucapitaine1863: 281). Partial destruction of the culprit's house, confiscation, and banishment thus appear as steps in a gradual process by which the culprit loses full membership, and thereby his legal status, in the village community.
This brief summary cannot do justice to the variety and complexity of the village laws that have been collected, and even less so to a historical situation that we know only imperfectly. More fundamentally, a summary is misleading in that the very distinctiveness of the various codes seems to have accounted for much of their importance. One of the most outstanding features of these codes is their attempt to create a communal space that is consciously set apart from its surroundings, and within which other laws and ties of solidarity clearly exist but are partly curtailed. Similarly striking is the emphasis put on the abstract categorization of people despite the fact that these codes were established by and for a village in which we can assume that everybody knew everybody else, and where such abstract categories must have had little practical meaning. The same is true for the astonishing amount of monetary detail given at times when such sums might not have been readily available and were probably not the obvious choice for regulating intra-village transactions. These seeming incongruities might point to the limited practical impact of these codes, and certainly, they underscore once more that the act of legislation following certain known formal standards appears as important as the codes themselves.Footnote 27 In turn, this may help to explain the emphasis on the village community (rather than ‘tradition’) found in virtually all qawânîn. It is both this uniform emphasis on distinctiveness, a clear penchant for abstraction, and the conscious creation and protection of a specific communal space through the public declaration of rules that can still be detected in contemporary Kabylia, and that accounts for some of its particularities.
THE GREAT TRANSFORMATION
With a change from military to civilian administration based on French civil law in the 1870s, French interest in Kabyle law codes waned, although Hanoteau and Letourneux's monograph continued to be consulted as a reference (Bontems Reference Bontems, Flory and Henry1989; Reference Bontems1992). Yet, villages, it seems, continued to issue laws, adapting them to changing circumstances. In the 1920s, French administrators showed renewed interest in law codes, many of which had been promulgated recently (e.g., Milliot Reference Milliot1922; Reference Milliot1926; Bousquet Reference Bousquet1936; Reference Bousquet1949). Following a longstanding French emphasis on the changeability of these ‘secular’ codes, they were now viewed mainly as resources that could be co-opted for France's civilizing mission (e.g., Hacoun-Campredon Reference Hacoun-Campredon1921; Morand Reference Morand1927). Several codes were published in the decades following (Milliot Reference Milliot1926). Some are written in French, and, although they are still preceded by an invocation of God, they try to copy French official language as much as possible, and include borrowed military terms, especially codes written after World War I. Others are in Arabic, but their vocabulary has changed: Kabyle words are more frequently employed, and French words, mainly connected with penal or military language, are common.Footnote 28 As before, legitimacy seems to rest on the present rather than the past community. The concerns addressed are broadly similar to those in the preceding century, but theft and murder have disappeared from the documents, since now—at least officially—they are subject to state justice. Public morality is now maintained primarily through attempts to prevent the consumption of alcohol, to uphold or reform Islamic standards, and to control the movements of women.Footnote 29 Clauses that regulate participation in village assemblies and their frequency, and collective assistance at funerals, abound. In many cases, roll calls are to be taken at assemblies. Expropriation and banishment, prohibited by French law, are no longer an option, and they have been replaced by ostracism or “quarantine”: all interactions with the culprit are suspended, in effect making life unlivable for him (Milliot Reference Milliot1926).
There are few publications on village codes after the 1940s. In the 1950s, however, the concomitant institution, the tajmaɛt, came to new glory as municipal reforms were introduced in some parts of Kabylia. Throughout the colonial period, the French administration had been much more at ease with the village assembly as an institution than with its original law-giving functions, which inevitably clashed with state pretensions of establishing a legal and coercive monopoly. Voices were repeatedly heard demanding that ‘Kabyle democratic dispositions’ be encouraged, at least in areas where no colonial settlers might suffer from their expression. From 1945 onwards, selected Kabyle villages were turned into “municipal centers,” with the village assembly, now electing a mayor, at their heads. These centers functioned much as their advocates desired, although local administrators made sporadic complaints about embezzlement of municipal money and legal overreach by the mayors. The mayors promulgated dazzling numbers of new “municipal laws” that had no basis in French legal provisions but often repeated former qawânîn (Mahé 2001: 408–9; see Laburthe Reference Laburthe1946; David Reference David1949).Footnote 30 Heavy sanctions were inflicted on those, including the mayor and the local policeman, who provided information on village matters to the French authorities (David Reference David1949, cited by Mahé 2001: 409). Although the municipal centers were officially heralded as a successful democratic incorporation of ‘traditional’ institutions into the modern state, villages thus succeeded in maintaining their legal autonomy, or at least in proclaiming their right, duty, and desire to do so.
The war of independence (1954–1962) saw a radical upheaval of rural social structures, and in the view of many irreversibly destroyed ‘traditional’ Kabyle society (e.g., Bourdieu and Sayad Reference Bourdieu and Sayad1964). Yet, the period also saw the taking over of Kabyle social institutions by local guerrillas. They replaced the village tajmaɛt with one under their control, and hastened to establish new local laws that often resembled past qawânîn, in form if not in content (Bouaziz and Mahé Reference Bouaziz, Mahé, Harbi and Stora2004). Despite these similarities, the source of legitimacy had been removed from the village to a higher level and, at least notionally, the law as imposed by the nationalist party was the same everywhere. Unity and homogeneity, rather than diversity, became the dominant ideal. After independence, Algeria officially pursued a radical “modernization” policy, and during the 1960s, local legal independence was certainly not among avowed political goals. In fact, however, local village committees maintained or reconstructed their influence, and much government business was conducted with their help. Boundaries between local villages and state dignitaries often became blurred, since influence on one level led often to influence on the other. In local memories, village assemblies appear to have been as much tools for bullying the state into complying with local wishes as guarantors of village order and security (Scheele Reference Scheele2008). Even if no new codes were made public, many of the underlying notions of justice and village inviolability seem to have persisted, and to have been taken for granted by both villagers and local state representatives.
Today, village institutions and qawânîn are most frequently mentioned, by the younger generation anyway, to express a general pride in the “democratic” tradition of the Kabyles (as learned through republished extracts of Hanoteau and Letourneux and relevant Kabyle websites) and a more concrete frustration with other people's meddling in their personal affairs. Though democratic in the abstract, the actual contemporary village assembly is often described as something akin to a local ‘mafia,’ judging by information gathered in my field site, at least.Footnote 31 Its few activities are resented: roll calls at funerals, for example, and the practice of fining those who do not show up, are seen as inappropriate for contemporary working conditions; collective work is experienced as menial and oppressive, and most villagers avoid it by paying a fine. Similarly, young and second-generation emigrants resent attempts by older emigrants who have long settled in Paris to collect funds in order to improve village infrastructure, to repatriate deceased emigrants, and (at least according to younger emigrants) to maintain slipping control over emigrants and to “put them all on a list.” Yet, all villagers proudly point to the paved roads, electricity supplies, and water pipes “built by the village,” as a proof both of Kabyle uniqueness and of a true “village-hood” that sets their village apart from its neighbors. Notions of village space as having a certain moral quality have endured: after weekends, the boundaries of village land can be seen neatly marked out by broken beer bottles, signs of nightly drinking bouts impossible in the village itself. In the 1990s, those members of the village with Islamist sympathies displayed them freely when living outside the village (most of them were students in Algiers), but invariably shaved their beards or removed their headscarves upon entering the village.
FROM VILLAGE CODE TO SOCIAL PACT
Despite these continuities, villagers in my field site agreed that since national independence, no qawânîn had been issued. This was to change in 1995, when the village tajmaɛt was reconstituted as a social association in order to draw up and endorse a new set of village codes. They were referred to as a “social pact”: a collection of sumptuary laws destined to regulate celebrations in the village. The initiative did not come from the village itself, but from its neighbors; it was collectively discussed and endorsed by representatives of seven villages which all belonged to the same administrative district. It was part of a larger trend that swept through the valley that produced rather similar codes in most districts.Footnote 32 Since the 1980s, there had been a more general Berber cultural revival, leading to the establishment of local websites and other publications focusing on individual villages.Footnote 33 These often featured local qawânîn as proofs of true “village-hood” and the latter became the object of some competition between villages.
The reasons given for the establishment of the social pact range from a feeling of “having to keep up with the others” to a generally expressed worry that weddings and other celebrations had become too expensive, thus endangering village solidarity through pompous displays of wealth, and the impossibility of contracting marriage for many younger and poorer villagers. Fears were expressed that many younger villagers would ‘drop out’ of the village altogether and hold weddings in Algiers or like places without involving the village community. Such weddings have indeed become rather common recently, and are generally frowned upon as “weddings without the couscous” that can hardly been seen as truly valid. Few of those involved in the drafting of the pact evoked historical continuity, or were even aware that a large part of historical qawânîn had been concerned with similar matters.
The social pact was drawn up in French (throughout the area, codes were written in Arabic, French, or both, but rarely in Kabyle). Its format and language clearly copied the idiom of officialdom, frequently invoking the République algérienne démocratique et populaire and faithfully imitating the clumsy administrative French that Algeria has inherited from its former colonial masters. But it also carefully mentions all participating villages by name, as represented by their village assemblies. Much as in the earlier codes, different, and what one might think of as mutually exclusive sources of legitimacy are thus tapped simultaneously. This was not done to hedge bets, it seems, but instead because the different sources are seen as essentially complementary. In other words, rather than opposing state law, the villages involved intend to complement it where necessary, and claim the legitimacy to do so both as Algerian citizens and as representatives of their respective villages. After a lengthy preamble, the document proceeds to list sumptuary prescriptions in detail. Most prominent are provisions for weddings. The conditionals so characteristic of former village law codes have disappeared, replaced now by statements of fact, with no mention of sanctions:
Heading 1: Marriage
Chapter 1: Engagement ceremony (tahbult)… .
Art. 2: the fiancé is asked to bring seven items by way of presents as listed below:
— two suits as well as two pieces of cloth
— one pair of shoes
— one bottle of perfume
— one packet of henna
— six small bars of soap
— one engagement ring.
These objects should under no circumstances be subject to an exhibition during the engagement ceremony… .
Chapter 2: Wedding ceremonies (assensi)… .
Art. 6: the wedding procession (tikli) inside and outside the village is regulated according to the customs and traditions of the village as well as according to the ability of the groom to offer a reception or a dinner to all the citizens of the village, or only to his relatives (proches) and guests.
Art. 7: in addition to this, the use of firearms during and after the ceremony is abolished.
The convention thus tried not only to formalize the quite varied preexisting customs but also to incorporate more recent changes into the wedding ceremony, such as wedding rings, and to abolish customs that might be seen as outmoded and potentially dangerous, like the use of firearms. During the numerous weddings to which I was invited (and no two were alike), the details of how a ‘proper’ wedding should be celebrated were generally the object of passionate debate, centered on necessary and unnecessary expenses, but also around the introduction of ‘Western’ or ‘Arab’ custom and symbols, which the code tries to regulate. The code also sanctioned behavior formerly seen as shameful or asocial, in the name of the good of the community: the groom (significantly not his family) is held to provide food only for as many villagers as he can afford. This sanctions retrospectively a general reduction of the scale (or the ‘privatization’) of weddings, without letting them slip out of the control of the village council. At the same time, the social convention attempted to affirm village authority in reaction to the threatening encroachment of ‘outside’ customs and sources of legitimacy and moral ‘systems,’ of which the ‘Islamism’ of the 1990s and the increasing ‘individualism’ of the younger generation were but symptoms.
Another striking feature of these codes is their eclecticism. They amalgamate a variety of sources of legitimate practice: “custom,” but also Islamic principles and more recent ideas about “Berber identity,” that are often mediated by researchers and cultural movements based in France. Thus, Heading 2, Chapter 3, Article 13 states, “As regards the traditional and religious festivals (Yenayer, Rbie [Berber new year and spring celebrations], Aid el fitre, Aid el adha…), it is desirable to celebrate them with all possible fervor and commitment in order to perpetuate them and to firmly establish them in collective memory.”
Islamic festivals are thus put on the same level as Berber festivals, which are by the same token classified and unified across the region. Since then, there has been a profusion of local newspaper articles on Berber festivals, which explain why they exist and how they should be celebrated: to celebrate the Yenayer has become a recognizable sign of Berber identity. That Islamic celebrations are defined here in much the same way—as signs of collective identity and markers of community—bears witness to an attempt to redefine Islam as part of local and village-regulated custom. Although the wording of the pacts varied from region to region, including more or fewer references to Islam and the sharî‘a according to the district where they were composed,Footnote 34 this attempt to claim village control over local religious manifestations was common to all, and was clearly a pressing issue in the troubled decade of the 1990s.
These codes thus seem to publicly claim community in the face of new sources of moral standards—militant Berberism and political Islam—that both purport to be exclusive and come with their own local elites and independent, outside sources of legitimacy. Yet these codes are clearly more than just an archaic reaction to change. Rather, they harness the latter to local notions of moral sovereignty. Drafting these codes, by their very form, required the contribution of a younger generation of villagers wielding pen and stamp. Furthermore, as already seen, these codes explicitly recognized a larger unit of jurisdiction, that of the baladiyya or commune, within which interaction and intermarriage are intense. Despite this clear reference to larger political units, the ability to reinforce these codes was lodged at the village level, since it remained with those who signed the conventions.
Most of the social pacts quickly fell into desuetude, mainly, people say, because disobedience could not be punished. And indeed, it is striking that, contrary to other village “customs” that though unwritten are still enforced (see above), the social pacts make no mention of fines. Nevertheless, people proudly show off these codes as proofs, yet again, of the rather intangible but nonetheless indispensable quality of “village-hood.” This local insistence on their importance indicates that their limited practical impact should not dissuade us from taking them seriously. Rather, it shows that the act of law-giving, as both a foundational act and an ongoing activity, is intrinsically bound up with local notions of community. It can therefore not be discarded as an imperfect or failed attempt to describe or even regulate practice; codification is a particular kind of practice in itself, and as such, it remains fundamental to Kabyle society.Footnote 35
CONCLUSION
Historical Kabyle village codes provide a set of variations on notions familiar from the literature on customary law in the Middle East and North Africa: protection, compensation on different levels, offences divided into injuries to honor and material damage, responsibility for dependents, and communal guarantees rather than representation. Yet they are also strikingly different. The difference lies mainly in the emphasis they place on the village as a space with its own ‘honor’ and legal competence, which is consciously set apart from other villages within several larger, overlapping legal complexes. The second striking feature of historic Kabyle qawânîn is the emphasis placed on the act of legislating itself, and this should make us cautious of the temptation to neglect the study of local law in favor of an exclusive focus on ‘practice.’ Here, the act of giving law exceeds the boundaries of conflict resolution, and constitutes in and of itself a public claim to moral community and the need and capacity to protect this community and its space. Thus, although most codes have fallen into desuetude, they are still seen as essential markers of “village-hood,” and figure as such on village websites. Furthermore, some of the ideas that underlie these codes remain relevant to contemporary Kabylia. Notions of the special status of village space persist, as do local propensities to issue laws, be they followed or not. Such continuities in the midst of radical and often violent change clearly deserve our attention for their own sake. Yet they also raise larger questions about the possible uses and abuses of colonial ethnography, and about the status of public legal discourse not just as a badly followed guideline for ‘practice,’ but as in itself a socially constitutive practice. Most importantly, they force us to reflect on how to compare and understand, in their own terms, not just various local law codes, but different notions of what “law” might be, and ought to be.
