Until
the independent Moroccan State established a judicial administration centralized
in that the judge or cadí is a public official and based on the
sharia -it is to say, the legal precepts of the Koran-, in the Rif survives
the forms of preislámic justice. When a conflict arose, the litigants
directed to the weekly market -the suq - where took place the assembly
-the yemáa - of the family heads of the tribe or tribe fraction.
Without lawyers' mediation, and being based on the collective oath of those
witness, each part exposed the facts and next the yemáa decided
the ticket that was imposed the one guilty. In all the cases the pain was
pecuniary and graduated in function of its graveness, from the invasion
of cultivations for the livestock -what was considered a smaller crime-
until the murder in the enclosure of the suq -that the most serious crime
was considered-. The sentence was collection, in arabic language, in a
document called kanon. Of the payment of the ticket -that charged the own
yemáa- it was responsible collectively the culprit's family and,
in case this doesn't become effective, the family of the one harmed it
was legitimated to assault the convict's house, to appropriate for the
force of their properties, to plunder them or to set on fire them. This
way was organized a direct and summary justice that there is been defined
by the jurists like a "penal right without State."
The kanon takes
the form of what is denominated in Europe "appearance notarial" or "records".
After the routine religious formulation of commendation, the names of those
litigants and witness are enumerated and the cause of the conflict is described.
Next the yemáa emits its verdict, consistent in the reconciliation
of the grantors in exchange for the payment of a compensation to those
harmed. To the foot they figure the names of the members of the assembly
that at the same time emit and they give faith of the verdict.
The primitivism
of this rifian right belongs together with its gentile social organization,
in the one that the tribe is the nucleus of the social life. But primitive
it is not equal to simple or rudimentary, but rather to the one setback
supposes a structure of great complexity and subtlety in the composition
of its multiple elements. Of this they are derived two consequences: a
positive one that is their extraordinary scientific interest for the history
of the Right; and another negative that is the practical impossibility
of their survival. This primitivism is exemplified in the extreme supposition
of the wardha bu r-haqq ("there is not law"), proclamation of the vindicta
privata for the nonfulfillment of the pacts interfamilies that inaugurated
one period of violent anarchy in which the bonds of blood only conserved
their validity like social order. This ancestral culture, located in an
intermediate point between the family social organization and the properly
political, it is similar to the one that appears in the Old Testament,
in the preclasic times of the one Roman right or in the prerroman right
of the Iberian Peninsula, where is verified the importance of those interfamilies
pacts.
The conception
penologist of the norm is an essential characteristic, because the object
of the resolution of the yemáa is always the imposition of a ticket
in money. In fact, the arab term haqq that designates generically to the
Right, the reason or the Law, in the Rif has the special meaning of ticket
or pecuniary sanction. This monetary pain comes to be the artificial, only
and widespread consequence, of all their written norms, pacts and cánones.
The localism
is another feature of this right, since so much the norms written as the
uses grateful they appear linked to concrete territories, more or less
extensive but inhabited by tribes or fractions of tribes certains.
The right applied in each tribal territory differs enough as for the one
content, although the formulation or normative stereotypes are relatively
common and it can be said that in they lies the true wealth of the legal
culture amazigh.
The unvertebration
is one of the consequences of this localism, since an unique common base
doesn't exist and on the one that leans on the normative power and their
social effectiveness. At level intertribal the leff works or alliance between
tribes or neighboring fractions to maintain the peace, giving place to
some relationships of "confederation" in unstable balance. Inside oneself
tribe or fraction the organ of the sovereignty local is the yemáa,
where the western eyes want to perceive the three powers (legislative,
executive and judicial) in germinal state. At internal level to each fraction,
the collective oath is the formalization of the family solidarity and the
base of the judicial procedure.
The arabization
of this amazigh right is another feature to consider, from the moment in
that those sentence they are materialized in some cánones written
in arabic language by notaries formed in the Koranic right. In all the
territories it was also applied the Islamic right -the sharia and the hadit-
in way supplementary or residual when own norms didn't exist or they had
fallen in disuse. Not only Abd el Krim al Khatabi impelled the arabization
of the kábilas, but rather the spanish Protectorate established
a "jalifian justice", once gave way the idea of the Africanist League of
dividing the spanish territory in three counties and to organize one of
them -among the rivers Uringa and Nekor- according to the rifian right
. Nevertheless, the Regulation of February 12 1.935 allowed in its article
3 the validity of the "right common" as long as is "respected"; that is
to say, tolerated, for the Islamic tribunals. In reality, the biggest differences
between arab and imaziguen were given, more than in the juridical land,
in the sociological where certain customs relative to the marriage -most
equitable inheritance among sexes that their equivalent Islamic- they were
denounced by the religious authors that attempted "to purify" those opposed
practices to the Muslim sensibility.
The common
character or based on the habit it is debatable. For the western right
the habit is a spontaneous, durable and obligatory social use, without
reference to concrete human acts that they establish it. On the contrary,
the juridical classification of the imaziguen was constituted by decisions
with date certain and that they are derived of the expressed will of their
authors. It also goes to sanction the behaviors way offenders very different
to like the habit works in the liberal right whose presumed antiquity prevents
him to appear in form of applicable rate.
The fragmentary
character is another excellent element, since the cánones always
responds to a concrete demands and they don't seek to seat an applicable
doctrine to other cases. On the contrary, it isn´t properly neither
of an act legislative, but rather of a pact-curse,
the cánones
doesn't seek to articulate a homogeneous, complete and stable juridical
classification; that it leaves it would be incompatible with the underlying
social reality.
This fragmentary,
partial and occasional functionality, next to the elementary coercive technique
of the ticket
and the vengeance,
they indicate the scarce degree of installation of a properly legal instance
-neither therefore state- in the amazigh culture.
