My main argument here is that the legal duality that was created by the British was in fact quite illusory, not only because it was incomplete or did not reflect reality on the ground, but also because the executive used the tribal system for its own advantage, often to avoid the implications of Iraqi law. I have already shown how the TCCDR was used as an instrument of administrative control and oppression by the Iraqi state. What is also interesting is that tribesmen did not hesitate to use the national courts when it was in their interest to do so. According to one shaikh, the only ‘tribal responsibility’ in the frontiers is fitting. It illustrates that one could enforce a remedy against an entire tribe rather than the responsible tribesman, while reminding the reader that, “It is their own custom, not a British invention” (Barton, supra, at 60). The reality of course was that by enforcing it in such a manner (through the Frontier Regulation), it ceased to be ‘their own custom’ as such. 95Muhammad Tawfīq Husayn. Nihāyat al-Iqtāʿ fi al-ʿIraq: (The End of Feudalism in Iraq: A study of the conditions of the Iraqi peasant & the Agrarian Reform Law), (Beirut: Dar al-ʿlim lil-malayeen, 1958), at 79. 96 Ibid. Willard Berry had a similar conclusion in relation to Pakistan’s Frontier’s Crimes Regulation: “A total consideration of the Regulation reveals that it was neither derived from custom, nor endowed with the guarantees of due process and equal protection which characterized the Western system of adjudication, and it was the specific intent of the Government to bestow a large portion of discretionary power upon local administrators. The Regulation cannot be conceived as an instrument of justice in either the traditional or Western sense nor can it be considered a substitute for either.” Berry, supra, ft.41, at 41. 97 Jamali, supra, ft. 90, at 144. 98 Mahmood Mamdani. Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism, (New Jersey: Princeton University Press, 1996), at 125.
reason why a tribesman preferred the tribal courts was that he hoped to receive the monetary remedy (‘ransom’ was the word he used) that was owed to him under customary law.99 In reality, however, not unlike the preceding Ottoman order, the tribesman found strategic ways to exercise his rights under state law by disguising himself as a townsman when it was to his advantage to do so. M.N. Kadhim (who started out his career as a deputy prosecutor, becoming a criminal court judge and eventually a member of the Court of Sessions) argued that Iraqi state law was continuously encroaching into the tribal legal system.100 Kadhim had the following to say from his experience as a long-standing member of the bench: ‘[t]he author in his career has seen tribesmen living in towns or near towns sue one another in civil as well as in criminal courts in towns. When some of them raised the question of tribal customs for one reason or another and asked that the case should be referred to the Administrator, the opponent would immediately reject the suggestion and say that they had nothing to do with tribal customs: they had become “civilized townsmen” and they wanted the “Government” to give them their “rights” or to punish their opponents.’101 In the reverse situation, powerful townsmen would claim to have tribal roots to get away with certain crimes, in particular murder.102 These instances are quite revealing as they illustrate that the ‘dichotomy’ between the tribesman and the townsman in Iraq that was constructed in law was not only misleading, but were both in reality encroaching into each other. It shows that the tribesman was not ‘primitive’ and ‘uncivilized’ as the British believed in the sense that he was too attached to his tribal roots to rely on the state rather than his tribal customs. The fact was that the tribal and state legal structures existed in tandem and in an overlapping manner, for one reinforced the other (as they were interdependent) within an overarching semi- colonial Iraqi state and order. It was therefore the function of such a positivist duality that one should focus on, which was to further and strengthen the Iraqi state and in turn British interests after all.
To what extent then was customary and tribal law ‘invented’ in Iraq? The literature on the ‘invention of tradition’ and customary law is vast, especially in the context of the history of
99 Jamali, supra, ft. 90, at 144.
100 M.N. Kadhim, Reaction to Crime Under Tribal Law and Modern Codification in Iraq, (D.Phil. Thesis, Oxford University, 1961).
101 Ibid, at 317-318.
102 An example of this occurred when Abdullah Beg al-Sani, Director-General of the Minister of Interior was murdered in his office by Abdullah Falih Beg al-Sa‘dun. Although the murderer was sentenced to death, on appeal he explained that he was defending the honor of his family as al-Sani married the daughter of the late Prime Minister Abd al-Muhsin al-S‘adun under opposition from the S‘adun family. He argued that he was entitled to be tried under the jurisdiction of the TCCDR and customary law. His plea was successful and his death sentence commuted to a term of imprisonment. See Sluglett, supra, ft. 87, at 172.
colonial Africa.103 Terence Ranger who was the first to coin such an analysis, argued that what was referred to as ‘customary’ tradition (including customary law) was an invention devised by Europeans who believed that they were ‘respecting age-old African custom’.104 This analysis was eventually expanded, influencing a plethora of legal scholarship (especially in legal anthropology), in particular the work of Martin Chanock on customary law in Malawi and Zambia; Sally Falk Moore’s work on colonial law in Chaggaland, as well as, Sally Engel Merry’s study on law and colonialism in the context of the history of Hawaii.105 The overarching concern in this diverse body of work was the effect that colonialism had on the legal structures of indigenous societies – the general claim was that the customary law that emerged during these periods of colonization was not a residue of the past (as was believed to be the case) but rather emerged out of the colonial encounter itself. It is in this (strict) manner that it was ‘invented’ rather than ‘discovered’.106 This line of reasoning was a direct challenge to the dominant (evolutionary) understanding in legal anthropology of what has generally been termed as ‘primitive law’.107 Customary law is not primitive law, but rather (for the most part and at least structurally) modern (semi-)colonial law in customary garb. Chanock for instance has argued that, ‘the law was the cutting edge of colonialism, an instrument of the power of an alien state and part of the process of coercion. And it also came to be a new way of conceptualizing relationships and power within African communities, which were undergoing basic economic changes…The customary law, far from being a survival, was created by these changes and conflicts. It cannot be understood outside of the impact of the new economy on African communities. Nor can it be understood outside of the peculiar institutional setting in which its creation takes place….’108
103 The main text that started this inquiry was: Terence Ranger, “The Invention of Tradition in Colonial Africa,” in The Invention of Tradition, (Cambridge: Cambridge University Press, 1983). 104 Ibid, at 250.
105 See Martin Chanock. Law, Custom and Social Order: The Colonial Experience in Malawi and Zambia, (Cambridge: Cambridge University Press, 1985); Sally Falk Moore, Social Facts and Fabrications:
“Customary” law on Kilimanjaro, 1880-1980, (Cambridge: Cambridge University Press, 1986); Sally
Engel Merry. Colonizing Hawaii: The Cultural Power of Law, (New Jersey: Princeton University Press, 2000); Francis G. Snyder. “Colonialism and Legal Form: The Creation of ‘Customary Law’ in Senegal”, in Crime, Justice and Underdevelopment, (London: Macmillan & Co, 1982), pp.90-121. 106 There are limits to the notion that customary law was ‘invented’ tout court. This has been dealt with elsewhere, but the point here is that one must approach the word ‘invention’ with caution, for customary law was never invented out of thin air. Moreover, the natives and tribes had a role to play in its development, for it wasn’t merely a European invention per se, although it was used to the benefit of Western hegemony and domination. My use of the term ‘invention’ is therefore made in this strict narrow rather than literal sense. For a critique of the notion of invention, See: Thomas Spear, “Neo-Traditionalism and the Limits of Invention in British Colonial Africa,” Journal of African
History, 44 (2003), pp.3-27.
107 See E. Adamson Hoebel. The Law of Primitive Man: A Study in Comparative Legal Dynamics, (Harvard University Press, 1954).
Customary law was therefore a unique product of the colonial encounter itself and cannot be explained otherwise. It must therefore be understood as being molded by the historical processes of colonialism and capitalism. Nevertheless, it must always be emphasized that this British ‘invention’ was not applied on a tabula rasa, but rather molded into a preexisting Ottoman order.
The ‘customary law’ of the tribes of Iraq should be approached in a similar analytic manner, for it emerged out of and was transformed by British colonial policies, rather than being a restoration of an ancient tradition from the past. It is true that the ‘corpus of law’ that was applied under the jurisdiction of the TCCDR was ‘uniquely Arab,’ 109 but one would need to explore the underlying changes within the semi-colonial Iraqi order to expose the transformations that these legal processes were both undergoing and stimulating. Historians of Iraq have generally been aware of the fact that the customary and tribal law that was applied under the TCCDR was somewhat different from what was there before the arrival of the British and their institutions. As I have already mentioned, there are limits to the notion that the British ‘invented’ this customary law tout court, for they contributed to this invention by molding specific features of such law so as to make it compatible with their imperial agenda. By doing so they created a unique positivist duality in Iraqi state law.
What was it exactly then that was different about British ‘duality’ as opposed to Ottoman ‘duality’? The law has generally been approached in a strictly functionalist manner, and what was generally said (usually in passing) was that tribal institutions and law contained a ‘fluidity’ that was ‘frozen’ and which was made ‘rigid’ by a process of institutionalization. To a certain extent this is true, but a much more in-depth analysis of the law is needed here. One would need to ask more specific questions, for instance: how did this process occur and what does it reveal about the nature of colonial and semi-colonial legality? It was mainly modern legal positivism that the British brought into the fold. It was surely this positivist characteristic of modern (Western) law and its legal form that brought about such transformation (or even mutation) to indigenous legal traditions. The positivist semi-colonial legality ensured that the social and political relations that were altered would be reconciled with the capitalist system turning certain customs (as well as non-customs110) based on practice and usage into systematized formal legal rules backed by a
coercive state. It is in this way that such ‘customary law’ was in fact a part from modern (state)
109 See Hanna Batatu, “Of the Diversity of Iraqis, the Incohesiveness of their Society and their Progression…” in Hourani and Khoury (eds.), The Middle East: A Reader, (1993).
110 As Mamdani writes, ‘customary law consolidated the non-customary power of chiefs in colonial administration’. Supra, ft. 98, at 110.
law rather than a past (primordial) tribal tradition. Its function was (ironically) to strengthen the centrality of the Iraqi state, while furthering British imperial interests. So, the duality that was imposed in Iraq by these institutions and structures should be approached in such a rounded manner – the TCCDR (including the corpus of tribal law that was applied and interpreted through this instrument) was itself entirely apart of the general institutions of the modern (positivist) law of the state. It did not necessarily bring about a space of suspension of law (through administrative legality) per se, but rather following Esmeir it allowed for ‘positivist elasticity’.111 The positivist character of the modern (semi-colonial) law defined the parameters of the tribal legal system and its institutions, and despite having no jurisdiction in tribal matters, the state retained through such elasticity considerable influence. Consequently, the duality of law in Iraq recounted above that has generally been perceived as a characteristic of British indirect rule turns out to actually contain pervasiveness despite its fragmentation, which allowed the Iraqi state room to maneuver and in turn invade the social/political spaces of townsmen and tribesmen alike.112