Custom and "Shar'a" in the Bedouin Family according to Legal Documents from the

Judaean Desert
Author(s): Aharon Layish and Avshalom Shmueli
Source: Bulletin of the School of Oriental and African Studies, University of London, Vol.
42, No. 1 (1979), pp. 29-45
Published by: Cambridge University Press on behalf of School of Oriental and African
Studies
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 CUSTOM AND SHARI'A IN THE BEDOUIN FAMILY
ACCORDING TO LEGAL DOCUMENTS FROM THE

JUDAEAN DESERT 1
By AHARON LAYISH and AVSHALOM SHMUELI

A. INTRODUCTION

This paper, by means of original Bedouin documents relating to matters

of personal status, attempts to disclose interaction between custom and shari'a 2
and to illuminate some of the mechanisms tending to complete the islamization
of a tribal society in process of sedentarization. The Bedouin dealt with here
are a group of tribes in the Jerusalem-Bethlehem region: al-Sawahira (c. 6,000
persons now) east of Jerusalem, al-'Ubaydiyya (c. 5,500) east of Bayt Sahlir,
the 13 al-Ta'amira tribes (c. 20,000) extending over a sector east of Bayt
Sahiar in the north to Bayt Fajjar in the south, and al-Rasha'ida (c. 500)
south-east of Taqi'a. Most of these tribes originate from H.ijaz and Najd.
They appeared in the region in small groups from the sixteenth century and
in time developed into tribes, while absorbing local fallahs. Their main
numerical increase took place in the twentieth century.
The sedentarization of these Bedouin began in the 1920's and was almost
complete by the 1970's. It was furthered by proximity to religious, economic,
and administrative centres (while still nomads they already visited the mosques
and markets of Jerusalem on Fridays) and by the consolidation of internal
security. A1-Ta'amira tribes have established settlements of their own, notably

Za'tara, and
villages H.armala, and Taqi'a;
about 2,500 in thesome of them
suburbs have settled
of Bethlehem. in existing
About Judaean
half of the
Bedouin under reference no longer live in tribal frameworks; they have
moved to other places in Judaea, and in the mid-1950's, under Jordanian rule,
they began to migrate to the East Bank and the oil countries. Those who left
sent considerable sums of money to their families which greatly assisted
sedentarization, especially as regards construction. In consequence of sedentari-
zation, the tribal structure of al-Sawahira, al-'Ubaydiyya, and part of al-
Ta'dmira has dissolved into the constituent hamilas (clans); the tribe no longer
functions as a political unit, and the shaykh has in most of the tribes been
replaced by the heads of the hamfilas, the mukhtirs. The Bedouin nowadays
earn their livelihoods outside the tribal areas, mainly as labourers in con-
struction, industry, tourism, and as watchmen. Small stock-breeding and
ground-crop farming have diminished considerably.

1 The paper is based on legal documents obtained from Bedouin in the Jerusalem-Bethlehem
region. It is part of a comprehensive study of custom and shari'a among the Bedouin settled
in that area, now being prepared under the auspices of the Middle East Research Unit of the
Harry S. Truman Institute in the Hebrew University of Jerusalem. The authors thank the
Institute for its assistance.
The collection of the documentary material would have been impossible without the whole-
hearted co-operation of arbitrators, mukhtdrs, and other Bedouin and of the Military Government
To all these and many others the authors express their gratitude. Thanks are also due to Mr. Avner
Giladi, of the Truman Institute, for his excellent work in summarizing the documents.
The anthropologist, Dr. Frank Stuart, who studies the legal aspects of Sinai Bedouin life,
has read the manuscript and made valuable observations, and the authors are greatly indebted
to him. The responsibility for the contents of the paper is, of course, entirely theirs.
2 For the historical background of the contest between shari'a and custom see A. Layish,
'Shari'a u-minhag ba-mishpaha ha-Muslimit be- Yisra'el ', Ha-Mizra4 he-Hadash, xxm, 4, 1974,
377 ff., and the sources indicated there.

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30 AHARON LAYISH AND AVSHALOM 8HMUELI

Each tribe has its arbitrators (hakam, muhakkam, qdd?1 'ashu'ir-): the shaykh,
the mukhtdrs, and persons not holding political office. Some arbitrators have
won fame even outside their tribe and are resorted to also by members of
other tribes and by fallhs and townspeople, including Christians. Especially
prominent are Shaykh Muhammad Salim al-Dhuwayb 'Ashirat al-Sharayi'a,
a member of the Jordanian Parliament, and Shaykh Muhammad Ahmad
'Amiriyya 'Ashirat al-Sharayi'a, the mukhtar of Za'tara, both of al-Ta'amira.
Arbitration generally passes by inheritance within certain families. The

economic position
The written of the(sakk,
document arbitrator
sanad, iswaraqa)
sound4(he is no
is of paid for his judicial
importance in Arabwork).,
customary law; it is not essential to the validity of a legal act or the proof of
a contention; the only recognized mode of proof being by witnesses. This
conception is accepted also by Islamic legal theory, but there is no positive
evidence that it originates in Arab customary law. Although the Qur'dn calls
for the use of written documents in certain circumstances (see, e.g., Sfiras ii,
282; xxIv, 33), orthodox exegesis treats this as a non-binding recommendation.
But reality is stronger than theory. The written document is essential in
practice, especially in private transactions, and the orthodox schools eventually
recognized it. Indeed, an entire branch of law developed which deals in-
tensively with documents (shur.t ' stipulations '). The written document was
essential also to the development of what is known as 'legal devices' (h4iyal).
Another indication of the shari'a's acceptance of the written document is the
sijill, the record of the shari'a court.5 A radical change in the status of the
written document has occurred in the modern legislation of Arab countries.
That legislation recognizes the document as valid evidence; in fact, the power
of the court may be limited to giving decisions based on written documents.

ThisIt reform
seems thatcan rely onsociety
in Bedouin the modernists ofvery
the document is therare
school offrequency
but its Muh.ammad 'Abduh.6
increases with the progress of sedentarization. The principal factors in this
connexion are closer contacts with the settled population in economic relations
and land transactions; the transition from collective ownership (mushi') to
individual ownership; the influence of shar'I (and civil) justice; the exigencies

3 For more detail see A. Shmueli, Hitnahalit ha-Bedewim shel Midbar Yehitdah, Tel Aviv,
1970;
in idem, 'Shevet
Ha-Bedewim, ha-'Ubaydiyya-ha-shinniyim
Bureau ba-mesheq
of the Adviser on Arab Affairs, Prime uva-heverah 'im ha-hitnabaluit',
Minister's Office, Jerusalem, 1971,
100-75; idem, Hitnahalfit nawwadim be-mer4av Yerifshalayim ba-me'ah ha-'eerim, unpublished
Ph.D. thesis, Hebrew University, Jerusalem, 1973; idem, 'Ha-reqa' le-hitna4alift nawwadfm
be-mer4av Yerifshalayim', Merhavim (Tel Aviv), I, 1974, 70-9; M. Sharon, ' Ha-Bedewim shel
Har Hevrn ', in A. Shmueli, D. Grossman, and R. Zeevi (ed.), Yehfidah ve-Shamran; praqfm
be-geographia yeshfivit, Jerusalem, 1977, 548-57; M. von Oppenheim, Die Beduinen, II, Leipzig,
1943; Erwin Graf, Das Rechtswesen der heutigen Beduinen, Walldorf-Hessen, [1952].
4 See, e.g., Nimr 'Awda al-Mubarak 'Ashirat al-Nabdhin al-Ta'dmira, sakk tahkim of
29 September 1963; Ibrdhim 'Abd Alldh al-Dar'dwi 'Ashirat al-Shawdwira al-Ta'imira, sanad
tahkim of 14 November 1975; and Muhammad Sdlim al-Dhuwayb 'Ashirat al-Shardyi'a al-
Ta'amira, divorce of 25 September 1964 (awrdq).
5 J. Schacht, The origins of Muhammadan jurisprudence, Oxford, 1950, 188; idem, An
introduction to Islamic law, Oxford, 1964, 78, 72, 193; Herbert J. Liebesny, The law of the Near
and Middle East; readings, cases, and materials, New York, 1975, 244 ff., and the sources indicated
there; E. Tyan, Histoire de l'organisation judiciaire en pays d'Islam, deuxieme edition, Leiden,
1960, 236 ff.; Jeanette A. Wakin (ed.), The function of documents in Islamic law: the chapters
on sales from Tahawi's Kitdb al-shurfi al-kabfr, Albany, N.Y., 1972, 4 ff.; N. J. Coulson, A history
of Islamic law, Edinburgh, 1964, 125, 148; idem, 'Muslim custom and case-law'. Die Welt des
Islams, NS, vi, 1-2, 1959, 21.

Cairo,6 1900,
Muhammad 'Abduh,
34; A. Layish, Taqrir ha-modernistfm
' Terfimat ft isldh al-ma4hkim
le-billanal-shar'iyya, ed. Muhammad
ha-mishpat hu-Muslimi ',Ha- Rashid Rid.,
Mizrah he-Hadash, xxvi, 1-2, 1976, 2, 9, 10; Coulson, History, 172 f.; J. N. D. Anderson,
Law reform in the Muslim world, London, 1976, 43 ff.

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 CUSTOM AND SHARI'A IN THE BEDOUIN FAMILY 31

of modern administration; the spread of literacy; and appeals by

to the arbitrators to reduce their decisions to writing in order t
documentation of this research. About 3,000 legal documents hav
collected, relating to various departments of law; personal
succession, penal matters, contracts and ownership, land, e
twentieth-century, the remainder mostly from the last quarter of th
century. Some were written by paid scribes (kdtib) from J
Bethlehem 7 and some by the arbitrators themselves or their as
latter are in colloquial Arabic, which sometimes makes them d
understand. Some of the older documents are in a poor state of
the writing is blurred or completely obliterated; some documen
and had to be restored before it was possible to decipher them.
It is known that orthodox Islam, with its system of beliefs and in
plays no major role in shaping nomad Bedouin society, its philoso
style. Popular religion, including the worship of saints and inter
predominates in it. In fact, the Wahhhbi puritanical revival m
itself the goal of completing the islamization of the Bedouin in
Peninsula as well as of the rural and urban population which was not
orthodox for its taste.8 One of the phenomena accompany
sedentarization in modern times is a trend towards orthodox Islam. The latter
is gradually becoming the obligatory life-style as to worship and observance,
and attachment to Muslim institutions and to religious functionaries com-
petent to administer and expound the sharT'a is increasing.9 The causes of this
phenomenon are the imposition of shar'i jurisdiction on the Bedouin by the
central government, education, and modern means of communication.
The relation between custom and shari'a extends over a whole gamut of
grades according to the stages of transition from a nomadic to a sedentary
society. These grades may be divided into two main categories. In one of
these, custom reigns supreme, free from the control of the shari'a; this
supremacy is not absolute, though, for customary law as we know it today has
for centuries been influenced by the shari'a, especially in the fields of contracts
and obligations. The other category reflects the assimilative power of the
shari'a over custom in tribal arbitration and especially in the shari'a court.
The protagonists in the contest between custom and shari'a are the
arbitrator and the qadi. The former shapes the customary norm in voluntary
private jurisdiction; he is, in fact, the creator of customary law.10 The qddJi
applies the shari'a within the framework of the taqlid, the legal doctrine
established by the IHanafi school. He indeed bears the brunt of the islamization
of custom, for the shari'a court is the principal daily meeting-place of shari'a
and custom, especially as far as the litigants are Bedouin. The documents in

7e.g. Sulaymin Silim Mubammad 'Ashirat SalhM al-Ta'dmira, divorce, n.d.

8 H. Laoust, Essai sur les doctrines sociales et politiques de Tak.-d-Din Ahmad b. Taimfya,
Le Caire, 1939, 519 ff.; idem, Les schisme dan8 l'Islam; introduction a une etude de la religion
musulmane, Paris, 1965, 323, 324; W. C. Smith, Islam in modern history, third printing, New
York, New American Library, 1963, 48 ff.; Ignaz Goldziher, Vorlesungen iber den Islam, tr. into
Hebrew by J. J. Rivlin, ed. M. Plessner, Jerusalem, 1951, 188 ff.
9 Gabriel Baer, Population and society in the Arab East, London, 1964, 132, and the sources
indicated there; idem, Studies in the history of modern Egypt, Chicago and London, 1969, 13, 14.
Cf. J. Henninger, 'La religion bedouine pr6islamique', in F. Gabrieli (ed.), L'antica societd
beduina (Universith di Roma. Centro di Studi Semitici. Studi Semitici, 2), Roma, 1959), 125 ff.,
and the sources indicated there.
o10 Tyan, Histoire, 48 ff.; idem, art. 'HIakam ', El, second ed., 72; Schacht, Introduction,
189; Joseph Chelhod, Le droit dans la socidted Bdouine: recherches ethnologiques sur le 'orf ou
droit coutumier des Bgdouins, Paris, 1971, 144 ff.

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32 AHARON LAYISH AND AVSHALOM SHMUELI

our possession cite only a few instances of the involvement o

contest. The results of the confrontation of shari'a and custom t
the degree of orthodoxy, religious and secular education, and soc
of the 'ulam&' and on their understanding of the islamizatio
tribal society undergoing sedentarization.11

B. MANIFESTATIONS OF THE SUPREMACY OF CUSTOM

1. The contribution of custom to Islamic law

The customary law of the present-day Bedouin, as far as it can be isolated
from the influences of Islamic law, originates in pre-Islamic Arab customary
law. The legal documents of Judaean Desert Bedouin contain many legal
terms and concepts which have counterparts in Islamic law, and the question
naturally arises as to what extent this suggests or even proves a customary
source of inspiration for that law. Schacht says that the naturalization of
pre-Islamic Arab customary-legal terminology in Islamic law was only to be
expected, but rightly adds that this is not axiomatic and that positive proof
of the source of inspiration is required in each case.12 A comprehensive study
of pre-Islamic legal terminology has not yet been carried out, and the Bedouin
documents before us, as far as they provide 'living' information on a period
some 1,400 years ago, may perhaps make a modest contribution in this direction.
We should, of course, emphasize again that we have to do with a Bedouin
population which has absorbed falldh elements and was under the intensive
influence of orthodox Islam even before sedentarization owing to its proximity
to Jerusalem and Bethlehem. But despite these weighty reservations, it seems
to us that the documentary findings confirm the assumption of an Arab
customary source of Islamic law. This conclusion may be arrived at by
examining legal terms and concepts in daily use among Judaean Desert Bedouin
which, though occurring also in Islam, have an original customary connotation,
materially different from an Islamic one.
The term sunna or ' the sunna of the Prophet' in an Islamic context means
a practice or precedent established by the Prophet and worthy of being
followed. Goldziher has proved that this term originates in the ancient pagan
sunna, while Margoliouth discovered that its original meaning was wider: an
ideal or normative practice of the community as a whole, deriving its positivity
from its status as an ancestral (salaf) heritage. The pagan Arabs regarded the
sunna as sacred, as the only source of law and religion. Its opposite, the bid'a,
was considered an innovation in the negative sense. Schacht, who studied the
development of the connotations of the term sunna in the ancient schools of
law and in the legal doctrine of al-Shafi'i, arrived at similar conclusions.13
Bedouin in the Judaean Desert and elsewhere frequently use the term
sunna, in various combinations, in what would seem to be its Islamic sense.
Thus, in one case, a woman stated that she had married a man by ' a shar'!

11 The relationship between sharn'a and custom as reflected in decisions of the shari'a courts
and the opinions of muftfs will be discussed by A. Layish in a separate paper.
12 Schacht, Introduction, 8, 25 f., 73, 83; Anderson, Law reform, 8, 10 f.; J. Chelhod, ' Le
B6douin et le droit', Revue de l'Occident Musulman et de la Mediterrande (Aix-en-Provence), 11,
1972, 157.
13 Schacht, Origins, 58 ff. and the passages referred to there in the works of Goldziher and
Margoliouth; idem, Introduction, 8, 17; Ignaz Goldziher, Muslim studies, ed. S. M. Stern, Ii,
London, 1971, 25 ff.; A. J. Wensinck, art. ' Sunna', EI, 555; cf. R. B. Serjeant, ' Haram and
hawtah, the sacred enclave in Arabia', in 'Abd al-Rahmin Badawi (ed.), Milanges Taha
Husain, Le Caire, 1962, 47-52.

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 CUSTOM AND SHARI'A IN THE BEDOUIN FAMILY 33

marriage in accordance with the sunna of Allah and his Messenger '.14 However,
a study of the circumstances in this and similar cases reveals that the reference

is to a customary
marriage not meetingmarriage in the of
the requirements full sense
a shar'i of the such
marriage, term: an 'at.'
as offer andor hiba
acceptance (ijdb wa-qabfl) and the use of set verbal forms. The qdi of
Bethlehem, 'Abd al-Qadir 'Abd al-Muhsin 'Abidin, wishing to differentiate
between a shar'T and a customary marriage, said that in the past the Bedouin
first had their children marry 'in accordance with the sunna of the Messenger
of Alldh' and then applied for a judgment declaring the marriage valid.
'Arif al-'Arif, discussing the Negev Bedouin, carefully distinguishes between
shar'T marriages, performed through a ma'dhiin, and customary marriages,
performed' by way of al-qasala proceedings'; in the latter, the bride is handed
over bi-sunnat Allah wa-sunnat rasilihi. This phrase has also been encountered
among the Sinai Bedouin.15
We may have to do here with sunna in the ancient, original sense: norma-
tive custom ascribed bona fide to the Prophet by his Bedouin contemporaries.
Even today, Bedouin in the Judaean Desert, who have abandoned the qasala
marriage, believe that the marriage usual among them is a proper Islamic
marriage in accordance with the custom established by the Prophet. The
reading of the Fitiha might seem to provide a religious element for the
customary marriage, although this gesture is of course not capable of validating
it. Israeli shar'i qddis have in hundreds of cases decided that the marriage
should be terminated and referred the parties to the ma'dhin for the performance
of a shar'i marriage.'6 It should be noted that the Druzes, too, use the term
sunna in various combinations, such as ' the sunna accepted by the Druze
community', 'tribal ('ash&'iriyya) sunna', 'the sunna of Allah ', and 'the
religious sunna'. There is of course no Islamic connotation here, although
motives of taqiyya 'simulation' may have played a part.' The term occurs
here in the context of the normative custom or, in the words of Schacht, 'the
living tradition' of the community. It seems that, as in Islam, the legal
concept has been adapted to a new religious framework.
Bedouin documents use certain legal terms in the original, customary
meaning they had before they passed into Islam and gradually acquired a new,
narrower connotation. Thus, the Bedouin still employ the words ijtihad and
ra'y as synonyms in the sense of discretion, personal judgment. In one case,
the mumayyiz (umpire in the event of disagreement between two arbitrators),
Shaykh Muhammad Salim al-Dhuwayb 'Ashirat al-Sharayi'a al-Ta'dmira, said
after making his award: 'This is what the Lord has enjoined upon me and
what is in accordance with my judgment (ijtihadi)'. In another case, the
arbitrators, Shaykh Sulayman Salim al-Shaykh and Shaykh Mfiss Salama,

14 e.g., Sulaymin Salim Mubammad 'Ashirat Salib al-Ta'Amira, divorce, n.d.; interview
with Shaykh Sulayman of 6 October 1975.
15 Interview with the qddi of 6 July 1975; 'Arif al-'Arif, al-Qadd' bayn al-Badw, Jerusalem,
1933, 130; Chelhod, Le droit, 104. On the meaning of the term qasala see Clinton Bailey,
' Bedouin weddings in Sinai and the Negev', Studies in Marriage Customs (Jerusalem), iv, 1974,
pp. 113, n. 21, 114.
16e Layish, 'Shari'a u-minhag', 380 if., 399; we are obliged to Dr. Clinton Bailey, who is
doing research on legal maxims of the Sinai Bedouin, for helping us to form an opinion as to this
question.
1 e.g. Druze Division, Ministry of Religious Affairs, File DB/18 of 16 January 1960,
19 January 1960; Druze Religious Court, Haifa, Taldq, File 42/67; Nafaqa, File 42/73; Kamal
Mu'adi,
1968, 5;'Shu'i~n al-t.'ifa
A. Layish, al-Durziyya',
'Ma'amad ha-IslamMajallat al-Akhbirha-Drizft
ba-mishpabah al-Durziyya (Jerusalem),
be-Yisra'el', Im, 3-4,
Ha-Mizrab
he-H.adash, xxvI, 3-4, 1977, 152, 154 ff., 161, 199.

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34 AHARON LAYISH AND AVSHALOM SHMUELI

being in disagreement, applied to the mumayyiz, Shaykh Muh.ammad Mahmmid

Fakhkhar
power 'Ashirat
is your Sal.h
power and theal-Ta'amira, entrusting
judgment is your the0 decision
judgment, master of to
thehim:
right'The

judgment
These terms(al-amr
still hadamrukum wa'l-ra'y
that meaning in the ra'yukum
early stagesyd
of s.hib al-ra'y al-sadid)
the development of '.18
Islamic law and only later acquired a different, more technical sense or were
replaced by other terms. We know that in Islamic law ijtihdd means the
derivation of new religious-legal rules, by analogy (qiyds), from the Qur'an and
the sunna and the derivation of validation from consensus (ij'm'). The term
ra'y, on the other hand, did not change its original customary-law meaning,
viz. discretion unfettered by textual limitations, but was replaced by the term
qiyas, i.e., discretion limited by precedent established by the Qur'an and the
sunna.19 As we shall see below, many terms of Islamic family law are current
also among present-day Bedouin. They undoubtedly originate from customary
law since a great part of them already occur in the Qur'an, although their
present connotations may be influenced, in varying degrees, by Islamic law.
It would appear that the Bedouin distinguish between customary law and
the shari'a. Thus, e.g., the arbitrator Ibrahim 'Abd Allh al-Dar'awi 'Ashirat
al-Shawawira al-Ta'amira declares: 'The shari'a is stronger today than the
far' or al-'awd'id al-'ashi'iriyya' or: in the past, divorces would be performed
out of court; this was taldq far'i or 'asha'irf (as distinct from shar'i).20 In
arbitral awards, we often find a combination of a shar'i and a customary norm,
such as: 'The wife must obey the husband if a shar'i and far'i dwelling has
been provided for her; the man shall provide a [dwelling] place equipped with
everything required for a shar'ci and far'i dwelling '. Sometimes a distinction
is made between the rights of the parties under the shari'a, secular law (qdnan
or nizdm) and tribal ('ashd'iri) law.21 Nevertheless, the impression sometimes
arises that the use of the term shar'i in a customary context is meaningless
linguistic routine. Thus, e.g., in a khul' divorce, the arbitrators decided that
the wife must give up her shar'i rights and that, in addition, her father must
return the dower. There is a contradiction here. According to the Muslim
shari'a, which regards the woman as a party to the marriage contract, the
dower is her personal property and it is she, therefore, who must return it in
the said circumstances, whereas according to custom, which, in the marriage
of dominion, treats the woman as the object of transaction, the dower is the
payment to the guardian for the ownership of the woman and it is therefore
he who must return it.22
It is the accepted view that the office of the qddi, i.e. the institutionalized
judge, in Islam developed from customary voluntary arbitration (tahkim). In
the days of the Prophet, the two institutions existed side by side, as is attested
by the Qur'dn (see, e.g., S-ira Iv, 65). The Judaean Desert Bedouin still refer
to arbitration and shar'i jurisdiction in identical terms, derived from the verbs
hakama and qada', without a normative or any other consistent distinction
18 Muhammad Sdlim al-Dhuwayb 'Ashirat al-Shardyi'a al-Ta'dmira, divorce of 25 September
1964; and Sulaymdn Sdlim Muhammad 'Ashirat SalAb al-Ta'dmira, khul' of 10 December 1966,
respectively. Cf. Chelhod, Le droit, 85.
19 Schacht, Origins, 98 ff.; idem, Introduction, 37, 46, 53, 69 f.
20 Interviews with him of 22 June 1975 and 14 November 1975.
21 e.g. Sulaymdn Sdlim Muhammad 'Ashirat Saldh al-Ta'dmira, khul' of 10 December 1966;
Ibrihim 'Abd Allah al-Dar'dwI 'Ashirat al-Shawlwira al-Ta'dmira, sanad tabkim of 15 August
1970.
22 . Robertson Smith, Kinship and marriage in early Arabia, 1903, repr., Boston, Beacon
Press, n.d., 92 ff., 112 ff.; Anderson, Law reform, 10-11. For more detail on khul' see below,
? 3, pp. 37-8.

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 CUSTOM AND SHARI'A IN THE BEDOUIN FAMILY 35

between them. This testifies to the customary connotation which pertain

the term qddi in the context of arbitration before it struck root in Islam
assumed a new meaning, distinguishing it from hakam.23

2. Arbitration preferred to shar'! jurisdiction

In this transition period, when the Bedouin resort to both judicial agencie
customary arbitration and the shari'a court, in matrimonial matters, there a
still clear manifestations of preference for the former. The parties sometim
turn to arbitration when proceedings in the shar~i'a court have already begun
Thus, in one case the parties, on appointing the arbitrators, agreed to withdr
actions (for maintenance and obedience) filed in the shari'a court and no
file further actions in the shar~i'a court or monetary claims in the civil c
unless the arbitrators failed to make an award. Shaykh Sulayman S

Muh.ammad
are 'Ashirat
still disposed Salah fashion'
of 'in tribal al-Ta'amira believes
and that that most
the Bedouin matrimonial
prefer tribal to matters
shar'I jurisdiction because of the efficiency of its proceedings and its sensitivity
to justice.24 It indeed seems that intimate, informal customary jurisdiction,
whose norms are congenial to the Bedouin, is preferred by them to the shari'a
court, whose application of the Hanafi doctrine is too formal and rigid to their
taste. They therefore give a chance to arbitration before taking their case to
court.
The arbitrators, for their part, fear a frustration of the proceedings by the
intervention of the shari'a court on the application of one of the parties, since
arbitration functions on a voluntary basis and the arbitral award does not
bind the qdi. Sometimes when making their award, they demand that the
parties undertake not to apply to any other judicial authority, meaning in all
likelihood the shari'a court, lest the award be brought to naught, and this
undertaking is safeguarded by traditional guarantees. Thus, in one case, the
arbitrators awarded dissolution of the marriage and compensation for the
husband, noting that the parties had undertaken, with the guarantee (wajh) of
sureties (kufald'), not to apply to other authorities. An infringement of such
an undertaking generally entails fines paid through the sureties.25 In this
connexion, Shaykh Muhlammad Salim al-Dhuwayb 'Ashirat al-Sharayi'a
al-Ta'dmira says that 'the arbitrator is stronger than the shari"'a court'
because his decision is reinforced by the sanction of a fine (gharama). He attests
that in hundreds of cases the shar'i qd4i referred the parties to arbitration and
afterwards gave the arbitral award shar'i effect. In his opinion, the qddl is
bound by the tribal ('ashd'rT) arbitral award.26 Though this is not correct in
theory, it is so in practice.

3. Supremacy of custom in substantive law

There are many manifestations of the supremacy of custom in matters of
personal status of Judaean Desert Bedouin. Customary marriages are very
23 e.g. Mubammad Salim al-Dhuwayb 'Ashirat al-Shar5yi'a al-Ta'Imira, divorce of 25 Septem-
ber 1964; interview with Shaykh Muhammad Silim al-Dhuwayb of 14 November 1975;
SulaymAn SAlim Mubammad 'Ashirat SalAb al-Ta'Amira, khul' of 10 December 1966. Cf. Tyan,
Histoire, 64, 65; Schacht, Introduction, 10, 11.
24 Nimr 'Awda al-Mub5rak 'Ashirat al-Nab~hin al-Ta'Amira, sakk tahkim of 29 September
1962; interview with Shaykh Sulaymin Silim Mubammad 'Ashirat SalAb al-Ta'Emira of 15 July
1976.
25 Sulaymin Silim Muhammad 'Ashirat SaalMi al-Ta'Imira, khul' of 10 December 1966.
Cf. Tyan, ' Hakam', 72; idem, Histoire, 53-7, 60; Chelhod, Le droit, 171 ff., idem,' Le B6douin',
153 ff.
26 Interview with Shaykh Muhammad Silim al-Dhuwayb al-Shardyi'a al-Ta'Amira of
14 November 1975.

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36 AHARON LAYISH AND AVSHALOM SHMUELI

frequent. Informed persons attest that the marriages are perfor

shaykh. The bride's father says to the groom: 'I give you (a
daughter . . .' and the groom replies: ' I accept '. The parties
of course, dower is paid. The shaykh opens the ceremony wit

andaccordance
'in closes it with the sunna
with the reading
of of theand
Allah FItiha. Some proclaim
his Messenger', that
i.e. with the 'at.' is
Islamic
normative custom.27 We have already noted that these religious elements do
not validate the marriage from a religious-legal point of view since they do not
include certain features essential to a shar'i marriage. The Islamic marriage is
a contractual tie not involving a religious ritual act. Customary marriages come
to light also in decisions of the shari'a courts when the spouses apply for a
judgment declaring the validity of their union. Thus, in one case, a couple

from al-Saw.hira tribe stated in court that they had been married 16 years
before
was 'in accordance with the custom of 'Arab al-Saw.hira'; the marriage
not registered.28
Islamic law has adopted the customary concept of wildyat iJbdr, i.e. the
marrying off of a girl (or boy) by the guardian (wali) against her (or his) will.

The
to .Hanafi
minor girls school
whereas(as
thewell
otherassunn7
the shi'a)
schoolshas restricted
recognize it alsothis
with power of the guardian
regard to
major girls, provided they have not been married before and are still of child-
bearing age.29 The Bedouin documents record many instances of wildyat ijbir
in a customary context. They also record marriages of non-virgin and even
widowed major females concluded through guardians. In one case, in which
a woman had been married against her will, she escaped from her husband's
house and threatened to kill herself if she was forced to return to him.30 .Hjj
Mfisd Muhammad 'Id 'Ashirat al-Shardyi'a al-Ta'amira, confirms that ijbdr
marriages (he calls them ghasban 'anhM) are the established norm among the
Bedouin. In most cases, a problem does not arise since the bride is a minor.31
The aforementioned phenomena attest to the survival of the customary concept
of the marriage of dominion which does not recognize the woman as a party to
the marriage contract.
The distinction between prompt and deferred dower is a matter of custom,
not of law. Deferred dower, which is paid in the event of divorce or of the
death of one of the parties, is not usual among the Bedouin. The whole of the
dower is generally prompt, i.e. paid by the time of making the marriage contract
or at any rate before consummation of the marriage.32 The amount of the

27 Interviews with Shaykh Sulaymn Muhammad 'Ashirat Sal~ih al-Ta'Amira and Shaykh
Mfis& 'Awdat Allah al-'Ubaydiyya of 3 June 1975 and 6 October 1975. Cf. al-'Arif, op. cit., 130;
Bailey, art. cit., 114, 117; A. Kennett, Bedouin justice; law and customs among the Egyptian
Bedouin, new impression, London, 1968, 100; Reuben Levy, The social structure of Islam,
repr., Cambridge, 1962, 113. The pronouncement of the bismillUh and reading of the Fdtiba are
usual also among the Druzes, perhaps by way of taqiyya; see Amin Muhammad Tali', A8l
al-muwa4bbidin al-Durf~z wa-usiluhum, Beirut, 1961, 132, 133.
28 Shar'a Court of Jerusalem, Muhammad Shardri al-A'raj al-Sawshira, confirmation of
marriage of 4 August 1956.
29 N. J. Coulson, Succession in the Muslim family, Cambridge, 1971, 11, 12; Schacht, Intro-
duction, 161, 162; Levy, 110, 111. For more detail see Muhammad Abil Zahra, al-A wdl
al-shakhsiyya, Cairo, n.d., 123 f.
30 e.g. MAis 'Awdat Allah al-'Ubaydiyya, certificate of marriage for presentation to the
court, n.d.; marriage contract, Court of Bethlehem, No. 38426; Muhammad Ahmad Abfi
'Amiriyya 'Ashirat al-Shardyi'a al-Ta'Amira, obedience, n.d. Cf. al-'Arif, op. cit., 127 f.
I' Interview with Hajj Miisd Muhammad 'Id 'Ashirat al-Shardyi'a al-Ta'Amira of 3 June 1976.
12 A. Layish, Women and Islamic law in a non-Muslim state; a study based on decisions of the
shari'a courts in Israel, New York, 1975, 51; Chelhod, Le droit, 125; Emanuel Marx, Bedouin
of the Negev, Manchester, 1967, 104, 105, 159; interview with Shaykh SulaymAn Salim Muham-
mad 'Ashirat Sal~i al-Ta'Amira of 6 October 1975.

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 CUSTOM AND SHARI'A IN THE BEDOUIN FAMILY 37

dower might seem to be a matter for agreement between the partie

to the personal qualifications of the bride; but there are instan
of the dower being fixed by the tribal leadership. Thus, in on
ikhtiydriyya, the council of elders, of the hanamiflas of al-Radayid
and al-'Asdsiwa of al-'Ubaydiyya tribe assembled and fixed the
the dower as follows: 45 pounds for a virgin (including five p
placed to her credit with her father '), 30 pounds for a widow with
and 25 pounds for a widow with children (including three pound
to her credit with her father '). This is a remarkable instance of tri
as a factor limiting dower.33
The main purpose of the exchange marriage (tabddul al-zawjait
the mutual waiver of the payment of dower for the two wives. The
underlying this customary practice is that each of the wives re
dower for the other. Islam sought to eradicate this type of marriag
down that the dower belonged to the wife, thus emptying the p
principal content.34 There are records of divorces of shighi r c
the Bedouin. In these cases, both women waived the dower, wa
maintenance (nafaqat al-'idda), and the other rights of a divorced
waiver was for identical amounts and the conclusion is inescap
women received no dower at all-that the amounts cancelled each other out.

Shaykhthat
attests Muh.ammad
the womenSa'id
wereJamal
marriedal-Rifa'i, the wakil
against their of the qdd1
will, without dower,ofand
Bethlehem,
forced by intimidation to certify that they had received dower. He surmises
that the divorce rate is high among the Bedouin because of the mutual
dependence of the couples in this type of marriage.35
Islamic khul' divorces are based on the conception that the wife is a party
to the marriage contract. Therefore, if she wishes the marriage to be dissolved
she must compensate the husband for her release. The compensation usually
consists in the return of the whole or part of the prompt dower she has received
and in the waiver of the deferred dower, waiting-period maintenance, and other
rights according to the circumstances. As against this, the customary khul',
which is in fact the original form of this institution, is based on the conception
that in a marriage of dominion the wife is the object of a transaction, and that
therefore, if the guardian wishes to release her from the marriage, he must
return the dower he received for her.36
The khul' reflected in the Bedouin documents is the original customary, not
the Islamic one. The financial effects of the dissolution are determined in
accordance with the degree of responsibility of the parties: if the husband is
guilty, he loses his right to the whole or part of the dower, and if the wife is
guilty, her guardian is ordered to return the whole of the dower (before con-
summation of the marriage) or part of it, reimburse the expenses of the wedding,

33 'Ali Mu.ammad Hasan HIamillat al-Rad~yida al-'Ubaydiyya, dower of 24 June 1940.

Cf. al-'Arif, op. cit., 130 iff.; Gideon M. Kressel, ' Bride-price reconsidered ', Current Anthropology,
xvm, 3, 1977, 450.
3 For more detail see Layish, Women, 47, and the sources indicated there. Robertson Smith,
op. cit., 112. Cf. Chelhod, 'Le B6douin', 157-8.
35 e.g. SharI'a Court of Bethlehem, Sijill Taldq 3, p. 59, nos. 3/75, 4/76. Interview with
Shaykh al-Rif&'i of 19 May 1975. Cf. al-'Arif, op. cit., 131, 132; Layish, ' Shari'a u-minhag',
383 ff.; Marx, op. cit., 120, 121, 150, 160; Gideon M. Kressel, Pratiyit le-'imat shivtiyit:
dinamiqah shel qehilat Bedewim be-tahalfkh hit'ayrft, Tel Aviv, 1976, 161, 162, 223, 224; Chelhod,
Le droit, 105, 106.
36 Layish, Women, 159 ff.; Robertson Smith, op. cit., 112, 113.

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38 AHARON LAYISH AND AVSHALOM 8HMUELI

and compensate the husband in other ways.37 In one case, the arbitrators
Shaykh Ibrahim Mahmfid al-Far and Shaykh Alhmad Salim al-Dhuwayb and
the mumayyiz Shaykh Muhammad Ahmad Abil 'Amiriyya, all of al-Ta'amira
tribes, decided that the wife's father must upon her remarriage pay 100 dinars
for her divorce; if she did not remarry within 10 months, her father must raise
this amount from some other source. As security for the implementation of
this award, all the property of the wife's father was pledged pending taking
possesion (qabd) of the dower. Shaykh Muhammad Salim al-Dhuwayb 'Ashirat
al-Sharayi'a was appointed surety (kafitl) for the implementation of the award.
In another case, Shaykh Muhammad Salim al-Dhuwayb, as an arbitrator,
decided that if the wife's father refused to return the dower to the husband
as a quid pro quo for the divorce he must return his daughter to him ' and
there will be no divorce until Allah puts them out of their misery '. This case
strikingly illustrates the dominion character of the marriage.38
Deferment of repayment of the dower until the wife's remarriage has been
observed also among Israeli Muslims. Some stipulate that the woman may not
remarry until she has paid compensation to her former husband. In other
words, the obligation rests on the woman like a charge; she is not free to
enter into another union before the obligation has been fulfilled. But there is
a clear difference here. It is the wife who undertakes to compensate the
husband for the divorce out of the dower she will receive upon remarriage, while
among the Judaean Desert Bedouin the wife is not a party to the negotiations
or to the matter of the claim but the object of the transaction; it is her guardian
who undertakes to return the dower. The customary khul' has been observed
also among African tribes whose islamization is not yet complete. It is not a
deviation from the shar'i khul'; on the contrary, Islam has deviated from the
customary khul' by turning the wife from an object of sale into a party to the
marriage contract and hence into the addressee of a monetary claim.A9
The shari'a distinguishes between irrevocable (bd'in) divorce, which takes
effect immediately with all its legal and financial consequences, and revocable
(raj'i) divorce, which does not terminate the marriage immediately but allows
the husband to reinstate the wife during her waiting-period without a new
contract or dower; if he does not do so, the divorce becomes irrevocable.
After three divorces, the wife is forbidden to her husband unless she has mean-
while been married to another man. The waiting-period results from the
concept of the sanctity of natural fatherhood, and the requirement of the
intermediate marriage is to deter the husband from thoughtlessly harassing
the wife by alternately marrying and divorcing her.40
Shaykh Ibrahim 'Abd Allah al-Dar'awi 'Ashirat al-Shawawira and Shaykh
Sulaymn SMlim Muhammad 'Ashirat Salah, both of al-Ta'dmira tribes, attest
that in the period preceding Bedouin sedentarization or, as they call it, 'the

37 e.g. Muhammad Ahmad Abii 'Amiriyya 'Ashirat al-Shardyi'a al-Ta'dmira, marriage, n.d.;
Sulaymdn Silim Muhammad 'Ashirat Salih al-Ta'dmira, family dispute of 9 July 1974; Ibr~him
'Abd Allah al-Dar'dwi 'Ashirat al-Shawdwira al-Ta'Emira, family dispute of 26 August 1970;
Sulaymnn Sdlim Muhammad 'Ashirat Sal4i al-Ta'dmira, khul' of 10 December 1966 and family
dispute of 11 May 1972; interviews with Shaykh Muhammad Sdlim al-Dhuwayb of 14 November
1975 and Shaykh Sulaymdn Silim Muhammad of 6 October 1975. Cf. Layish, ' Sharf'a u-minhag',
386; Kressel, Pratiyft, 222.
38 Muhammad SAlim al-Dhuwayb 'Ashirat al-Shardyi'a al-Ta'dmira, divorce agreement of
29 June 1959 and divorce of 25 September 1964. Cf. Robertson Smith, op. cit., 113.
39 Layish, 'Shari'a u-minhag ', 386, 387; J. N. D. Anderson, Islamic law in Africa, new
impression, London, 1970, 320, 321; idem, Law reform, 11; Coulson, History, 136, and the
source indicated there.
40 For more detail see Layish, Women, 173.

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 CUSTOM AND SHARI'A IN THE BEDOUIN FAMILY 39

period of the goat's hair tents (yawm buyet al-sha'r)', when custom held undis
sway, men would divorce and reinstate their wives unrestrictedly (' u
20 times '), regardless of the waiting-period, as in the pre-Islamic per
(jehiliyya). Divorce was completely disregarded, and divorced wives we
reinstated without a new contract or dower. According to the shari'a, childr
born after reinstatement are 'children of adultery (zind)', but the Bed
paid no heed to this, and such children took a share of their father's estate
legitimate children. Nor were they alive to the requirement of an intermedi
marriage after a third divorce. In fact, they made no distinction betw
revocable, irrevocable, and triple divorce. The conditions reflected by t
testimonies undoubtedly still exist today, at the transition stage to sedentar
tion, though not to the same extent as they did in the remote past. They ha
also been observed among the Israeli Bedouin.41
Although the sunni Muslim system of succession is based on pre-Isla
customary law, in which only male agnates ('asabdt) inherit, it differs signif
cantly from the latter under the influence of the religious-ethical norms of
urban society, designed to qualify women and cognates (dhawi al-arham
succession, even if not on the same footing as male agnates; they are
Qur'anic heirs (dhawi al-fard'id). To prevent circumvention of the rul
succession, the sunni schools restrict the freedom of testation: not more
one-third of the estate may be disposed of by will and none of it in fa
of a legal heir.42
The Judaean Desert Bedouin, consciously or unconsciously, circumven
shar'i rules of succession in various ways, leaving their property to male agn
only. Some distribute their land among their sons in their lifetime. In one c
a member of al-Ta'amira tribes did so, leaving only one plot to him
apparently to ensure his livelihood. He explained that the distribution o
estate in his lifetime was to prevent covetousness and deceit among his
after his death. It was agreed upon by all the sons, and the father stipu
that he who infringed it should be fined 50 dinars. In another case, a Be
of al-'Ubaydiyya reached agreement with his six sons as to the distributi
some land on the basis of complete equality among them 'in return fo
monthly subsistence payment' of one dinar from each; he who did no
his share was to have no share in the estate. The father also stipulated that t
sons must not sell ' even one qirdt of the land' they received. In a fur
case, a Bedouin of 'Ashirat al-Zawahira al-Ta'amira opened the '[est
distribution session' (majlis al-taqsim) with the words: 'Allah will d
from Paradise him who debars a legal heir from his inheritance' and imm
ately afterwards distributed all his property, except what he required fo
subsistence, among his nine sons. This distribution, too, was made with
consent of the sons, and consent of the sons was also required if one of
wished to sell part of his share, apparently so that the property might not
out of the family. No wife or daughter is mentioned among the heirs in any
these cases.43 Only in one case was the estate distributed among daughte
41 Interviews with Shaykh Ibr~him 'Abd Allah al-Dar'dwi and Shaykh Sulayman
Muhammad of 5 August 1975, 6 October 1975, and 3 June 1975. See Layish, ' Shar'a u-mi
382, 383, 387, 388. Cf. Chelhod, Le droit, 130.
42 Layish, Women, 279, and the sources indicated there; Robertson Smith, op. cit., 65
4 Sulaymdn Silim Mubammad 'Ashirat SalAh al-Ta'dmira, succession of 10 January 1
Yiisuf 'Atiyya 'Alaydn al-'Ubaydiyya, disposition of estate inter vivos of 4 October 196
Mahmild Musallim Ibrajiyya 'Ashirat al-ZawAhira al-Ta'Amira, disposition of estate inter
of A.H. 1331 [1912], respectively. Cf. Layish, Women, 105; Marx, op. cit., 185, 186; Ken
op. cit., 99, 104, 106; Chelhod, Le droit, 134-6; Baer, Population, 39, and the sources ind
there.

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40 AHARON LAYISH AND AVSHALOM SHMUELI

the father's lifetime. A Bedouin of 'Ashirat al-Shawdwira a

tributed all his property among his four minor daughters,
mother guardian over them. He declared in the presence of the
no one could claim any of this estate. It seems that he had n
that unless he distributed his property among his daughter
they would be deprived of their inheritance after his death
agnates. But this is an exception which confirms the rule.44
Another mode of depriving a woman of her inheritance
renunciation. Although it is carefully recorded that she has
own free will, it seems that the male agnates force her to do so
property passing out of the family by her marriage to a strang
complies because the protection of her kinsfolk is more importa
property rights. Thus, in one case, a woman of al-Sawhi
strument of renunciation attesting that nothing she had inh
father and grandfather remained with her brother, that she
that was due to her. This may be a reference to monetary co
woman concluded by declaring that the attestation was made
will, without compulsion, 'and Alldh is the best of witnesses '.45
Another way of circumventing the shar'i rules of successio
a customary will, which is not subject to quantitative or pers
Thus, in one case, a Bedouin of 'Ashirat al-Masa'ida al-Ta'am
writing that certain property should after his death go to his li
lawful wife 'in lieu of (badal) marriage' if the elder [marri
enable their brother to marry by providing a dower for him ou
property. In other words, there was a contingent bequest; if
enabled their brother to marry, the estate was to be divided am
equal shares. The bequest was guaranteed by two well-know
Shaykh Muhiammad Sdlim al-Dhuwayb and Shaykh Muhamm
'Amiriyya, both of al-Ta'amira tribes. A bequest in favour
to finance his marriage-dower and dwelling-before the
divided among the sons is very frequent with the Druzes, w
freedom of testation.46
In one case a Bedouin, also of al-Ta'dmira tribes, willed all his property
to his five daughters, four of them married (to kinsmen of the testator, so that
their shares remained in the family), and to his two wives. The estate was
divided among them according to the category and location of the property.
One married daughter was given one and a half dunams of land or the proceeds
of its sale at a price to be fixed by her. The two wives were given equal shares in
certain property with the proviso that if one or both of them predeceased him,
her or their share(s) should revert to him, to be reallotted by him as he might
wish. Shaykh Muhammad Salim al-Dhuwayb explains that the testator had
no sons and that the purpose of his will was to prevent his daughters and wives
being deprived by male agnates of other classes. It should further be noted
that the estate was not divided among them in shar'i shares but in units as
compact and economic as possible so as to prevent disputes among them after
his death. The heading of the will was ' non-shar' j -hili bequest after death'.

-- Rizq al-Sa'id Rizq 'Ashirat al-Shaw~wira al-Ta'&mira, hayr irth of 18 November 1954.
Cf. al-'Arif, op. cit., 126; Chelhod, Le droit, 136.

29045
f.;Shar~ri Mubammad
Anderson, al-A'raj
Law reform, 11.al-Sawihira, wasl tanizul of 29 May 1956. Cf. Layish, Women,

Cf. 46AAbmad Dakhl and

A. Layish, ' Women Allih al-Makhtfib
succession al-Mis'Rd
in the Druze familyal-Ta'dmira, wa.iyya
in Israel ', Asian of 29Studies,
and African May 1956.
xi, 1, 1976, 111.

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 CUSTOM AND SHARI'A IN THE BEDOUIN FAMILY 41

It seems that the testator or whoever drew up the will for him w
it was contrary in all respects to a shar'i will with its well-kno
The term jdhiliyya is of course Islamic and not taken from pre-Isl
law. Shaykh Muhammad Salim al-Dhuwayb explains that
fairly common and is designed to disinherit sons. Shaykh Su
Muhammad 'Ashirat Sal~1h al-Ta'amira says that it is usua
property to legal heirs, without quantitative limitation and in sha
and economic as possible, when a dispute between them over the d
estate is anticipated, and that, where there are sons, this kind
made in order to disinherit daughters lest the property pass out o
after their marriage.4

C. MANIFESTATIONS OF THE SUPREMACY OF THE SHARICA

Concurrently with the sedentarization of the Bedouin, the gap between

custom and shari'a is narrowing. Following the decline of tribal organization,
increased stress is laid on the extended family as an economic and residential
unit and a framework for socialization (although its position, too, is weakening).
Islam has absorbed the patrilineal, patriarchal, and patrilocal pre-Islamic
Arab family; its peculiarities have found faithful expression in the Islamic law
of personal status, while it has at the same time been refined by religious-legal
norms.4 The sedentarization of the Bedouin is thus reflected in a strengthened
hold of the sharK'a over them.

1. Islamic elements in arbitral awards

Definite religious elements, reflecting the Islamic belief in the oneness of

God and the mission of His prophet, Muhammad, abound in arbitral awards,
especially in the preambles. The award usually begins with the bismillah
formula. Other formulas are: 'Allih is the patron (wakil) of what we say'
and 'Praise be to God, the lord of the universe, and prayer and peace to our

master,
peace '.49 Muh.ammad, hisfrequently,
Arbitral awards family andthough
his companions (sahb), and his
sometimes inaccurately, blessing for
quote
verses or fragments of verses from the Qur'an in support of the justice meted
out by the arbitrators, the superiority of truth over falsehood, the fair treat-
ment of women, etc. Thus, e.g., SFira iv, 58: '.... if ye judge.., judge justly ';
Sira vi, 152: '.. . and if ye give your word, do justice thereunto, even though
it be [against] a kinsman'; Sflras xi, 110, xvi, 118, and XLIII, 76: 'And We
wronged them not, but they were wont to wrong themselves...'; Sfira xvII, 81:
'... Truth hath come and falsehood hath vanished away. Lo, falsehood is ever
bound to vanish'; Sfara XLI, 46: ' hoso doeth right it is for his soul . . .' ;

47 'Id Jum'a Sulaymdn al-Dhuwayb 'Ashirat al-Sharayi'a al-Ta'5mira, wa~siyyat irth of

27 April 1975. Interviews with Shaykh Mu4ammad Silim al-Dhuwayb of 29 December 1975 and
with Shaykh Sulaymin Sdlim Muhammad 'Ashirat Sal&h of 29 December 1975. Cf. Layish,
'Women and succession ', 111. Cf., as against this, Layish, Women, 292 f.
48 For more detail, see Layish, ' Shari'a u-minhag', 377-8, and the sources indicated there.
49 e.g. Sulaymin SAlim Mu4ammad 'Ashirat Sal~i al-Ta'5mira and Ibrihim 'Abd Allah
al-Dar'dwi 'Ashirat al-Shawdwira al-Ta'imira, family dispute of 11 May 1972; S5lim Muhammad
Ismd'il Abil 'Uly& 'Ashirat al-'Abay5t al-Ta'dmira, succession of 10 January 1955; Mahmifid
Musallim Ibrajiyya 'Ashirat al-Zawdhira al-Ta'imira, disposition of estate inter vivo8 of A.H. 1331
[1912]. The Qur'dn quotations are from the translation by Mohammed Marmaduke Pickthall,
The meaning of the glorious Koran, New York, New American Library, 1953.

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 42 AHARON LAYISH AND AVSHALOM SHMUELI

and SiIra LXV, 2: '... . take them [women] back in kindness or

in kindness...,.50
After making their award, the arbitrators humbly declare th

best of arbitrators
decision (khayr
is made solely al-h.kimin)
by Allah, '; 'we
the only, thepronounce
victorious';the decision,isbut the
'knowledge
Alldh's exclusive domain'; 'this [the award] is what God has decreed for me'.
Sometimes they quote Qur'anic verses as evidence of Allih's wisdom. Thus,
e.g., Sfira xiv, 38: '... Nothing in the earth or in the heaven is hidden from
Allah '. Similarly, when hearing witnesses in accordance with the customary
rules of evidence, they do not omit to declare that Allah is' the best of witnesses
(khayr al-shdhidin)'. A woman waiting for their awards wishes that 'Alldh
may lead them to the discovery of the truth, so that she may realize her rights
as Alldh and the Prophet have commanded '.51
The inclusion of religious elements in the text of an arbitral award is an
ancient tradition dating from the jdhiliyya, the pre-Islamic period. In those
days the arbitrators, who enjoyed religious veneration, declared in the preamble
to their awards that they were guided by superhuman powers. Among others
the kdhins, soothsayers, acted as arbitrators, and the Prophet Muhammad,
much against his will, was regarded as one of them. The religious character
of the award provided the added validity and credit necessary for it to be
voluntarily respected by the parties.52 This character has been preserved to
the present time although the religion has changed; Islam has taken the place
of paganism. However, in spite of the appearance of religious elements in a
definitely Muslim context, a suspicion sometimes arises that custom still holds
unrestricted sway and that the reference to Alldh and the quotations from the
Qur'an are mere rhetoric and routine, especially where customary substantive
elements predominate in the particular document concerned. As is known, the
conception of Allih as the supreme deity, the creator of heaven and earth,
existed in pre-Islamic paganism, and the Qur'an frequently refers to Allih in
a pagan context.53 However, Bedouin honestly believe that their custom
reflects a Muslim norm. The religious element, despite the above reservations,
unwittingly legitimizes custom and thereby plays an important part in the
mechanism of islamization.

2. Shar'i elements in arbitral awards

Procedure and rules of evidence in arbitration (the appointment and powers

of the arbitrator, testimonies, the mode of reaching decisions, etc.) have
remained essentially customary, but shar'7 elements are penetrating into
customary substantive law. The arbitrators have adopted shar'i terms in
matrimonial matters or at least the shar'i connotation of terms which had a

50 Muhbammad Daniin mukhtir 'Ashirat al-Danfin al-Ta'Emira, family dispute of 9 July 1974;
Sulaymdn SAlim Muhbammad 'Ashirat Saldh al-Ta'Amira, impotence, n.d.; idem, khul' of
10 December 1966.
51 Mubammad Danfin mukhtar 'Ashirat al-Danfin al-Ta'Amira, family dispute of 9 July 1974;
SulaymAn SAlim Muhammad 'Ashirat Saldh al-Ta'Amira, family dispute of 11 May 1972; idem,
impotence, n.d.; Ibrahim 'Abd Allah al-Dar'Awi 'Ashirat al-Shawhwira al-Ta'dmira, family
dispute of 26 August 1970; Shardri Mubammad al-A'raj al-SawAbira, wasl tandzul of 29 May
1956; Mubammad SAlim al-Dhuwayb al-SharAyi'a al-Ta'Amira, wasiyyat irth of 27 April 1975;
idem, khul' of 25 September 1964.
52 Tyan, Histoire, 35, 42, 43, 59, 61; Schacht, Introduction, 8, 10.
53 For more detail see Tor Andrae, Muhammad-the man and his faith, New York, 1960, 24 ff.;
S. D. Goitein, Ha-I8lam shel Mubammad: keitzad hithawetah dat hadashah be-tzel ha- Yahadfit,
Jerusalem, 1956, 92, 93; F. Gabrieli, Muhammad and the conquest of Islam, London, 1968, 40;
L. Gardet, art. ' Allih ', El, second ed., 406; Henninger, art. cit., 133 ff., 139, and the sources
indicated there.

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 CUSTOM AND SHARI'A IN THE BEDOUIN FAMILY 43

different customary connotation. Thus, in one case, the arbitrators awar

'obedience' (.t'a) and a 'legal dwelling' (bayt shar'i) in exactly the sen
these terms have in the shari'a courts. It is also typical in this context th
arbitral awards sometimes conclude with the formula: 'The parties have
right of appeal against this award, which is in accordance with tribal cust
('awd'id 'ashi'iriyya) and the shari'a '.54 In a case in which a woman had be
married against her will and had fled from her husband, the arbitrator Shayk
Muhammad Ahmad Abfi 'Amiriyya decided that she must obey her husba
and return home, ' as laid down by the shari'a, and lead a married life with he
husband as commanded by Islamic law '.6 In another case, the arbitra
decided that the husband must fulfil his shar'i obligations towards his w
provide a ' perfect dwelling' for her in accordance with the standard prevailin
in his own and the neighbouring village, refrain from infringing her ma
monial rights, and treat her in a morally proper way; these demands confo
with the spirit of the Qur'an, although this is not expressly stated. The w
on the other hand, must obey the husband in accordance with the shari'a
secular law (qdniln) (the reference seems to be to the Jordanian Family Rig
Law of 1951, which is based on the sharf'a).56 In one case, a Bedouin in
lifetime divided his estate among his 'shar'i' daughters. The 'non-sha
jdhil! will' discussed above by which a Bedouin left all his property to h
legal heirs attests that its author was aware of his deviation from the sh
norm; this, too, is significant in the present context.57
A remarkable manifestation of peaceful coexistence of the customary a
the shar'i norm is the combination of elements of both legal doctrines. Th
in cases of disputes between spouses, arbitrators are appointed not only on the
behalf but also on behalf of their guardians. In one case, Shaykh Ibrahim
'Abd Allah al-Dar'awi 'Ashirat al-Shawawira al-Ta'amira decided that
husband must provide a bayt shar'i at a distance of about 50 metres from
residence of his family so as to maintain contact with his father's house witho
disadvantaging his wife. An independent, separate dwelling is a shar'i nor
and proximity to the father's house is a customary norm.58 In another c
the arbitrator decided that the wife must obey the husband, threatening t
if she did not return to him and denied him his conjugal rights, and this
proved 'by investigation and shar'i confirmation (ithbdt) ', her father would b
required to pay the husband 450 dindrs. In a further case, the arbitrato
began by declaring that they were deciding the case ' in accordance with triba
custom' and concluded by making an award requiring the husband, if he should
neglect to provide a legal dwelling, to divorce the wife by ' taldq shar'i '.59 It i
of course possible that in all these cases the term shar'i has a customary
connotation.

54 Sulaymtn Sjlim Muhammad 'Ashirat SalMih al-Ta'Amira, family dispute of 11 May 1972;

idem, .akk tabkkm

-- Muhammad of 11Abii
Ahmad May'Amiriyya
1972. 'Ashirat al-Shardyi'a al-Ta'Amira, marriage, n.d.
56 Sulaymdn Silim Muhammad 'Ashirat Sal4ih al-Ta'dmira, khul' of 10 December 1966.
Article 30 of the law, which deals with obedience, is based on Hanafi variants. See J. N. D.
Anderson, 'Recent developments in shari'a law viii. The Jordanian Law of Family Rights,
1951 ', Muslim World, XLHI, 3, 1952, 196.
5 Rizq al-Sa'id Rizq al-Shawdwira al-Ta'Amira, basr irth of 18 November 1954; Muhammad
Silim al-Dhuwayb
Succession, 'Ashirat al-Shardyi'a al-Ta'amira, was.iyyat irth of 27 April 1975. Cf. Coulson,
216, 217.
58 Nimr 'Awda al-Mubdrak 'Ashirat al-Nabdhin al-Ta'Amira, .akk ta4kfm of 29 September
1963; Ibrshim 'Abd Allah al-Dar'dwi 'Ashirat al-Shawdwira al-Ta'dmira, family dispute of
26 August 1970.
59 SulaymAn Shlim Muhammad 'Ashirat SalAh al-Ta'dmira, khul' of 10 December 1966;
idem, family dispute of 11 May 1972.
VOL. XLI. PART1. 4

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44 AHARON LAYISH AND AVSHALOM SHMUELI

3. Arbitrators' recourse to shar'i jurisdiction

The arbitrators sometimes refer the parties to the shari'a
pletion of the proceeding. Thus, in one case, it was agreed bet
that the husband should perform a renunciation (ibrd') div
qddi of Bethlehem. In another case, the arbitrators decided t
refused to obey the husband the marriage would be dissolve
would have to pay the husband a specific amount of compen
would have to renounce her right to prompt and deferred d
monial and waiting-period maintenance before the shari'a cou
hand, if the husband did not fulfil his obligations towards th
and good treatment), he would have to divorce her without
pensation and to pay her the deferred dower in the shari'a c
the arbitrators reached the conclusion that nothing was left to t
taldq in the shari'a court '.60
Needless to say that taldq divorces involve no legal proce
Islamic law, either. The Bedouin seem to resort to the shar
reasons of legal security. An arbitral award is not a judgmen
supported by the personal authority and prestige of the ar
reinforced, of course, by the traditional guarantees and fines
of execution through an official agency. The arbitrator's a
from the consent of the parties, in the absence of which the
executed; in any case, it is binding only upon the parties, n
party. In other words, an arbitral award is less authoritativ
judgment; in fact, it may be set aside by the qddi if it is incons
doctrine of the school he adheres to.61 The shar'i judgment
effect to the award-essential especially where financial ma
settled between the parties-by the religious sanction.
The combined action of the two agencies, the customary a
sometimes envisaged from the start: the parties appoint arbitrat
the ground for the settlement of financial matters between the
shari'a court to provide shar'T legitimation for the proposed sett
in one divorce case, it was noted that the arbitrators had be
accordance with tribal custom preparatory (tamhidan) to [pr
shari'a court '.62 Shaykh Muhammad Salim al-Dhuwayb attes
close co-operation between the customary arbitrator and the
may happen, e.g., that where a husband does not comply with
award for maintenance the wife applies to the qddi, who set
time for compliance and, if he remains obdurate, pronounce
the marriage. The intention here seems to be reliance on n
maintenance as a ground for judicial dissolution under the J
Rights Law of 1951.63

so 60Sharf'a Court of Bethlehem, Sijill Taldq 3, p. 176, no. 13 (ibrd'); Sulaym

mad 'Ashirat SaliTh al-Ta'dmira, ibrd' of 20 October 1974; idem, khul' of 10
Ibr~him 'Abd Alldh al-Dar'dwi 'Ashirat al-Shawdwira al-Ta'dmira, family d
1970.
61ex Tyan, Histoire, 50, 56, 57, 60, 61; idem, ' Hakam ', 72; Schacht, Introduction, 189; Shaykh

Muhammad Sa'id Jamidl al-Rifd'i, wakTl qad. of Bethlehem, thinks that an arbitral award is
not62
binding andSdlim
Sulaymdn requires confirmation
Muhammad 'Ashirat by theal-Ta'dmira,
Saldh qdd. in each case (interview
impotence, n.d. of 16 October 1975).
63 Interview with Shaykh Mul.hammad Sdlim al-Dhuwayb of 14 November 1975.

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 CUSTOM AND SHARP'A IN THE BEDOUIN FAMILY 45

D. SUMMARY

Although custom, in its natural environment, still enjoys wide autonom

in matters of personal status, there are significant indications that it is in
creasingly superseded by the shari'a on its own home ground-arbitration.
The encounter with the shari'a is mainly of historical importance; in prolonged
interaction between them, custom contributed many legal elements and term
to Islamic law. These were received into the latter while acquiring a new
content. In modern times, the shari'a has had the upper hand in the encounter.
It displays considerable assimilative power, and it may be doubted whethe
there is any significant amount of two-way interaction. Islamic legal institution
and institutions originating in custom but having acquired an Islamic connot
tion are gaining more and more ground in customary jurisdiction. In this
transition period of Bedouin sedentarization, a kind of peaceful coexistence
preserved between the two normative systems; 64 the dividing line is sometimes
blurred, and it is not always clear whether Islamic legal elements are adopte
in their proper sense. The adoption is sometimes superficial, mechanical, th
original, customary substance being preserved even where Islam and the
shari'a are expressly referred to. But there can be no doubt that ultimately
the shari'a will prevail and custom will recede.
The dependence of the Bedouin on the shari'a court is increasing; the
arbitrator's ability to compete with the institutionalized qd&i is lessening
because the latter is aided by state-imposed sanctions. Contraventions of
shar'T family law are not only ethical or religious offences but also offenc
against a state law, viz. the Jordanian Family Rights Law of 1951, which in
turn is based on the shari'a as represented by the various sunni schools b
derives its effectiveness from being a statute with a penal system behind it
Furthermore, the decisions of the shari'a court are enforceable by the executive
and this is the chief source of its strength and attractiveness in the eyes of the
Bedouin and the source of the weakness of customary jurisdiction in com
petition with it. In other words, it is not only the increased ascendancy o
orthodox Islam as a philosophy but also, and mainly, the secular civic exigencies
of a modern state, such as licensing and welfare, that cause Bedouin to reso
to the shari'a court.

64 cf. Schacht, Introduction, 62, 77, 78, 84; G.-H. Bousquet, ' Ada ', El, second ed., 170, 171;
Anderson, Law reform, 188.

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