The Opportunity for Legal Pluralism in Jordan

Introduction

Tribal communities in Jordan predate both Islam and the monarchy, so the culture and values of early Bedouin tribes arguably better define Jordan as a society than either religion or government. Even after the rapid globalization over the last century, the Bedouin lifestyle persists across Jordan, demonstrating that tribal values are essential to Jordanian identity. At the same time, however, Jordan is modernizing and becoming increasingly connected to the rest of the world. Tourism and expatriate rates have been growing, and after decades of intense regional turmoil, Jordan hosts more refugees per capita than any other country in the world. As foreigners and refugees flood into Jordan and as cities slowly adopt Western patterns of modernization, the grip of tribal tradition on the country’s politics and culture has loosened. Asa result, Jordan’s tribal traditions, legal system, and lifestyle have become increasingly threatened. .

 The legal system in Jordan consists of three components: Sharia law, the formal legal system, and tribal law. For the most part “they exist side by side by side and govern separate areas of the law. It is at the edges that the jurisdiction is blurred.”[1] Sharia law largely handles cases relating to personal or family matters, like marriage, divorce, custody, and inheritance. It takes authority from Islam and adheres to principles set out in the Qur’an. The formal legal system has complete jurisdiction over more complex and sophisticated issues such as fraud, taxation, intellectual property, labor, and immigration––issues which the government has the resources to efficiently  address. Tribal law is where the legal system in Jordan begins to break down and where the independence of state institutions is challenged. Jurisdiction blurs as some personal and criminal cases can either be resolved by tribal leaders or in state courts. Thus, tribal law introduces a degree of flexibility in the law where human rights and women’s rights are most vulnerable.

Background

In 1921, Abdullah I bin Al-Hussein entered present-day Jordan and accepted a gentlemen’s agreement with the tribal leaders who had been occupying the area. The agreement stipulated that the tribes give Abdullah I the seat to be king in exchange for autonomy. Thus, the Emirate of Trans-Jordan was established as a British protectorate. Prior to 1921, these traditional tribes lived in a harsh desert climate and engaged in seasonal migration across Jordan, Syria, Iraq, and Palestine. Derived from the Arabic word badawiyin, which means “inhabitants of the desert”, Bedouins organized themselves into communal tribes as a method of survival.[2] During this time, there was little subsistence agriculture and they relied on herds of camel, cattle, and other livestock for their needs. Weather conditions and the health of their livestock were undependable, so tribal members depended on each other. In order to survive, Bedouins greatly valued social stability and cohesiveness, and their socio-legal customs and codes they developed in the absence of government, police, prisons, and law reflected those values.

A practice known as jalwa, a type of forced migration, was one of the primary ways that tribes dealt with problematic members. In the case of premeditated murder, rape, and other serious crimes, the sheikh, or tribal leader, requires the perpetrator and 5 generations of his family members to leave the tribe.[3] Their return may be negotiated or the exile could be permanent. Living in the desert without the support of a tribe was dangerous, and attempting to gain acceptance into another tribe was incredibly difficult, so jalwa was usually reserved for the most grievous crimes. Since being shunned from one’s tribal community carried severe consequences, traditional customs developed around defending one’s honor, respecting tribal leaders, and avoiding stigma or shame.

Although jalwa serves to punish an individual, this peacekeeping method also protects the perpetrator’s family from revenge killings. Thus, jalwa is both a punitive measure and a de-escalator of tensions. It allows a chance for both parties to calm down and creates space for a peace agreement to be negotiated.  The practice reveals an essential truth about the Bedouin way of resolving disputes: rather than determine individual guilt or deliver retribution, “the primary aim is to close a conflict, end social upheaval, and restore social relations.”[4] Solidarity is valued above all else. Expressed metaphorically with the image of a camel walking through the desert carrying a load, if someone’s rights have been violated, the camel’s load is imbalanced. An imbalanced camel will have a hard time walking and is destined to die in the desert. To rebalance the camel, the “load” or violated rights must be rectified, representing a restoration of honor, respect, and stability.

In the 1930s, economic hardship as a result of recurrent droughts forced many Bedouins to accept jobs as soldiers in the Desert Patrol Force for the new state of Jordan under British mandate.[5] The transition to salaried work, as well as the intense resettlement and modernization policies led by the government in the 1950s and 60s, resulted in increasing sedentism of tribal communities. By the late 1960s, only an estimated 3% of the Bedouin population continued to live nomadically in Jordan.[6] In 1976, the Minister of Internal Affairs went even further and banned all customs, rules, and habits of tribal people in an effort to integrate them into Jordan’s formal government institutions.[7] Political theorists during this time predicted that “the role of the tribe would subside almost completely as the state provided more and more direct services.”[8] This proved inaccurate, however, as moving to a sedentary lifestyle did not spell the end of tribalism.

Today, tribes maintain an important role in government and society. Tribal leaders hold positions in parliament, the army, the courts, and routinely advise the King.[9] Tribal law is widely practiced, though informally, across Jordan and tribal leaders often work with civil courts and public security forces to resolve disputes. However, the level of tribe integration into civil society depends on geographic region.[10] Bedouin tribes are divided into three regions as illustrated in Figure 1, the northern badia, middle badia, and southern badia – each with its own norms and reputation. The middle badia is the most urban, wealthy, and educated of the three, and it has the strongest infrastructure and healthcare. Accordingly, the tribes in the middle of Jordan are less traditional and rely on government institutions. The ties between tribal leaders and members are weak, and as a result, the sheikh commands less respect and authority. The north and south badia are more rural, and tribes are essential to social identity. Tribal leaders are strong, well respected, and rely less on the government for services. However, the north and south regions are not completely alike. There are more cities in the north, so people are connected to urban life and civil law. The villages in the north have public institutions, infrastructure, and technology. So while northern tribes are still traditional, they tend to cooperate more with the government. On the other hand, the South is relatively underdeveloped and has less infrastructure and social services. Tribal affiliations are very strong and people place a high emphasis on traditional values. Tribal leaders in the south are powerful and often seek autonomy as they are less inclined to be subservient to the authority of the government.

The history and regionalism of Bedouin tribes is necessary to understand the foundations of tribal values, tribal customs, and tribes’ relationship with the government–all of which affect the efficacy of civil law and the future of legal pluralism in Jordan.

Framework

The coexistence of tribal law and civil law in Jordan in its current state fails to establish effective rule of law and inadequately protects human rights. The purpose of this paper is to analyze their relationship and consider possible avenues for reform: should the country seek to reconcile tribal and civil law into one formal legal system or construct a framework for legal pluralism where tribal law complements civil law? To answer this question, the paper will be structured in the following manner:

Theme 1: Detractive Elements: This question covers ways in which tribal law hurts or challenges the formal legal system. The existence of negative elements supports the case for consolidation of tribal and civil law.

Theme 2: Additive Elements: This question covers ways in which tribal law enhances or complements the formal legal system. Positive elements support the argument for legal pluralism.

Theme 3: A Way Forward: Synthesizing the results from the previous two sections, this section will explore models for a pluralist framework drawing upon responses from each participant. These models not only broadly suggest possible ways forward but also serve as a quasi-barometer oopinion.

These themes will be examined through both political and cultural lenses–a departure from mainstream literature which tends to use only one. They will be applied specifically to the Jordanian context and enrich the limited body of knowledge on the Middle East. This research is significant because if it can shed light on the space for legal pluralism, then it can also clear a path for the government, IGOs, NGOs, and other institutes to work towards strengthening the rule of law with careful consideration of the local context.

Terminology

For the sake of understanding, I offer a brief clarification of a few terms:

1. Tribal law is not a rigorously defined, codified, publicly available body of legal codes. Instead, the term is synonymous with “customary law,” and it describes a set of customs, traditions, beliefs, and practices which are observed, respected, and practiced by people. In this case, tribal law refers to the customs practiced by the Bedouin tribes of Jordan.
2. Rule of law exists when government officials and citizens are bound by and generally abide by the same law.
3. Legal pluralism refers to a context in which multiple legal forms coexist in the same area.

Literature Review

The existing literature on legal pluralism in the Middle East is fairly small and underdeveloped for at least two reasons. First, tribal law is based on oral tradition, so the technicalities are only well known by tribal leaders, making it hard for Western authors to study. Second, much of the research on the subject focuses on failed states, like Afghanistan and Iraq, not Jordan or other developing contexts. Due to a dearth of information specific to the Middle East, this research is instead focused on law literature in general, insofar as it pertains to legal pluralism and developmental states. It is important to note that rule of law theory (much like any theory) cannot be applied blindly and equally across all regions. Local specificity is important because what is pertinent to an isolated jungle in South America may be entirely irrelevant to a desert village in Syria. This paper does not provide a universally applicable formula, but rather, aims to create a framework for Jordan which may be useful to consider for Arab neighbors and other similar countries.

The rule of law, a necessary component to any stable and sovereign state, exists when “government officials and citizens are bound by and generally abide by the law.”[11] Thus, the rule of law operates at two levels: it imposes legal limitations on, and it coordinates the behavior of government officials and citizens. In other words, it depends on popular legitimacy and requires buy-in from state officials and society at large. People need to believe that the law is fair and legitimate in order to respect it. In this way, rule of law is “as much a culture as a set of institutions, as much a matter of the habits, commitments, and beliefs of ordinary people as legal codes.”[12] However, rule of law alone is insufficient to guarantee justice. A law can be unjust, unfair, or harsh, but it can still be consistent with the rule of law as long as government officials and citizens abide by it.[13] Understanding the cultural component is critical to developing rule of law in legally pluralistic societies.

Legal pluralism today generally takes the form of cultural, traditional, and religious norms applied by village tribunals alongside formal legal institutions. Colonization in the 18^th and 19^th centuries were a major source of these types of legal pluralism because “those transplanting legal templates in other countries assumed that their version was the right or best model”.[14] For a long time, scholars followed mainstream development theory and “rule of law orthodoxy” which established that multiple or coexisting legal forms detract from efforts to build rule of law, because it undermines state sovereignty, erodes a state’s claim to a monopoly on legal dispute resolution, impedes effective governance, and subverts the ideals of equality before the law.[15] Many argue that compared to formal institutions, local tribunals are inequitable, inconsistent, and prone to corruption and human rights abuses: they require a lower burden of proof and threshold for evidence, may not conform to norms of due process, are usually dominated by males, might apply harsh and arbitrary punishments, and make decisions based on unwritten rules.[16] Thus, many local tribunals “fail the Western tests of legitimacy.”[17] Other concerns include possible confusion and instability stemming from overlapping sets of laws, and more sinisterly, the potential for forum shopping by powerful, wealthy, and more informed individuals capable of manipulating the legal system to “get a better deal.” The widely accepted solution for the international community has been to “concentrate its legal development activities on the reform of formal justice sector institutions,” to make them an attractive enough alternative to customary or non-state systems. Moreover, many actors within the international community are only equipped to deal with state institutions or cannot operate outside a normative framework of human rights. As a result, engaging directly with local civil society organizations, labor unions, or community advocacy groups can be difficult. The ideal outcome for such actors is the eventual fading of legal pluralism as state systems gain prominence and non-state systems lose popular support.[18]

Literature recognizing customary systems as an intelligent accommodation to existing circumstances, as opposed to a defective legal system, is a fairly recent development. Recent authors attempt to consider whether alternative legal forms in situations of legal pluralism might satisfy rule of law functions that failing state legal systems are unable to provide.[19] Tamanaha (2011) summarizes:

“These institutions [customary legal fora] are of the community, closer in derivation and proximity, and hence more accessible to members of the community. Its norms and processes, its modes of decision making, are understood by members of the community. The proceedings are less costly, more timely, and often do not require the intermediation of legal professionals. The decision makers are known to or recognized by the community. Remedies or sanctions issued by decision makers rely upon the acquiescence of the parties and upon community support, which usually necessitates that the result be perceived by the community as acceptable…. A substantial proportion of the populace will not identify with state law—they will not see it as their law, serving their needs.”

In regards to reform, a new perspective in the literature advocates for proper engagement with customary systems, because in certain contexts those systems can heighten protections for marginalized groups, deliver access to justice for a broader population, and strengthen the rule of law. That research argues that the relationship between coexisting systems can be complementary and mutually reinforcing.

Methodology

Data was primarily gathered using two methods. The first was through secondary source information, such as news articles and academic papers. While most of the readings were dated within the last three to five years, some were up to ten or twenty years old. These papers provided necessary historical context as well as perspective on how culture, public opinion, and tribal-government relation have changed over time. Interviews with relevant individuals in Jordan were the second and most significant method of data collection. The purpose of these interviews was to gain a deeper understanding of the tribal system in Jordan, hear the perspectives of various demographics, as well as challenge some of the ideas presented in the prominent literature.

Eight interviews were conducted over the course of two weeks. Participants were chosen based on their relevance to the research topic and contacted through my personal and professional networks. The first interview was with a member of a tribe from the north of Jordan. He lives and works in the capital city of Amman, but maintains strong connections to his home village and tribe. The second interview was with Dr. Almadi, a professor of political science at the University of Jordan. He also lives and works in Amman, but returns to his village every weekend and retains his tribe’s values. The third interviewee, Dr. Ali, holds a doctorate in commercial law and is a professor of law at a university in Amman. He is respected for his professional and academic knowledge of civil law and the legal field.. The fourth interview was with Sheikh Talal, the leader of a large tribe in the north of Jordan. As the leader of his tribe, he regularly resolves disputes between members, maintaining stability for over 15,000 people. He is from the same tribe as Dr. Almadi. The fifth interview was with Ghaith, a student at a private university in Amman. He is Jordanian and belongs to a northern tribe, but lives by himself in an apartment near his university. He describes his family as modern and disconnected from tribal traditions. The sixth interviewee, Doha, is a Ph.D. candidate in law and part of a tribe from the middle badia, near Amman. The seventh interview was with Ram, a young criminal lawyer. She is one of the first Jordanians to have researched this topic and is passionate about improving legal justice in Jordan. The eighth and final interview was with Wesam, the founder of a community-based organization called I’zwa which means ‘solidarity’ in her Bedouin language. She views tribal law from a cultural standpoint rather than an academic or professional standpoint. All participants have given their verbal consent to be a part of this research and to have their real names be used. However, their last names and other identifying information have been concealed for their protection and privacy. All interviews were approximately an hour long and conducted in English, except for participant #4 and #7 who required a translator. Translation was conducted by a native Jordanian Arabic speaker.

Ideally, interviews would have been conducted face-to-face, over a cup of tea in participants’ offices, homes, and villages. However, due to the COVID-19 pandemic, these interviews were conducted via video conferencing.

Findings

The interviews provided context for and challenged news articles and studies published online. The first section will look at the negative question, or in which ways do legal plurality harm the rule of law. The second section will examine the positive question. The final section will review their responses in aggregate and consider potential ways forward for future reform efforts. Summaries of participants’ interviews will be interwoven to keep the semblance of conversation as alive as possible.

Theme 1: The negative question

The largest concerns with the coexistence of tribal law and civil law in Jordan were inconsistency, due process, culture, and human rights.

Inconsistency: All 8 participants agreed that the current plurality of legal systems led to differences in decision making. Dr. Almadi said that although Jordanian tribes generally have the same values, every tribe has its own norms and reputation that can guide legal deliberations and outcomes. Others pointed out that not all tribes are strong nor do all tribal sheikhs have the same regard for tradition. These differences are especially pronounced between urban and rural areas, all well as geographically, between the northern, southern, and middle badia. One tribe may have very progressive views on women’s rights while another may not, leading to inconsistent prosecution. Furthermore, Ram also observed that tribal law is not well known, as it is not written down and has no historical reference. Besides sheikhs and well-respected elders, most tribal people do not know the technicalities of the law. Lack of information leads to situations where decisions may be made based on personal relationships, reputation, or other motivating factors.

Additionally, tribal law often influences civil court decisions. All the interviewees said that tribal peacemaking procedures always precede civil court proceedings. Dr. Almadi stated that tribal rulings do affect state judges. He explained that a majority of judges will accept whatever atwa, or peace agreement, has been reached within a tribe for the sake of social stability, and often this means the judge hands down a reduced sentence. Others did not observe the same extent of tribal influence. Sheikh Talal, who has brokered dozens of atwas, said assuredly that state courts make the ultimate decision and need not recognize tribal processes. Dr. Ali and Doha both initially said that courts have full independence and the law is applied equally without discrimination. Further into the conversation, however, Dr. Ali admitted that the government pampers tribal leaders by appointing them to official state judge positions in the civil courts (more so prevalent in the past). This, he said, gives tribes power to make settlements which can result in reduced sentences by maybe 20 or 30 years. Similarly, Doha conceded that a court’s penalty can be cut in half in the event of tribal reconciliation. She gave an example of a man in her tribe who shot his daughter and his daughter’s lover, due to an altercation with the lover’s father. He was sentenced to 20 years in jail, but the families were able to reach sulha, or reconciliation, within the tribe. Accordingly, the man’s sentence was reduced to just 10 years. Dr. Almadi said that the difference can be even greater: for example, a 15-year sentence instead of a life sentence in the case of murder. Ram concluded that tribal law is definitely stronger than civil law.

Dr. Almadi addressed a final area of inconsistency, noting that the formal legal system can impose prison sentences and the death penalty. The tribal system, on the other hand, has more flexibility in terms of finding solutions to conflicts, using measures such as payment of blood money and jalwa. He gave an example of a woman from his tribe who is the victim of a crime and whose family is adamant about taking her case through the civil courts. The reason, he explained, is because the family knows that the court will hand down a life sentence, or even the death penalty, to the offender–a far worse punishment in their eyes than if the case is resolved within the tribe. A victim’s fate, he believes, should not differ so dramatically based on which legal system resolves their case.

Due Process: Dr. Ali felt strongly about inaccuracy within the tribal legal system. He believes that people without legal degrees should not be able to decide the outcomes of legal cases. Many tribal leaders, he explains, only went to formal schools for 3 to 5 years, and are functionally illiterate, but become tribal leaders because their fathers or grandfathers were prominent individuals. Civil court judges, on the other hand, are educated and trained in legal matters and apply the written law in a consistent manner. Furthermore, the formal legal system is simply more robust. Civil courts follow proper procedures, lawyers carefully document evidence, and police diligently investigate cases––all to preserve procedural and substantive due process. The tribal legal system does not have the resources to conduct proceedings of similar quality. Ram similarly observed that because the state legal system protects due process, civil courts are able to consistently treat everyone the same.

Human Rights: All eight participants unequivocally agreed that jalwa is an outdated and harmful practice. Dr. Bader, among others, expressed concern with the uprooting aspect of jalwa. In the past, fleeing the tribe required little more than taking one’s tent and animals and leaving. Today, however, people have jobs and business while students attend school and have coursework; to instantaneously move an entire family, numbering in the tens and even hundreds of family members in extreme cases, is a logistical nightmare. Furthermore, the collective aspect of jalwa is also problematic, according to Doha. She says that only the guilty person should be required to leave because only he bears responsibility for the crime. The practice violates human rights because it imposes a collective punishment which implies collective responsibility. Sheikh Talal shared a different perspective. He argued that jalwa is not and has never been a punitive measure. The intention is to separate the two parties involved, calm tensions, and prevent revenge killings. It provides a chance for atwa and avoids further bloodshed. He believes that jalwa should be limited to only fathers and brothers, and in his role as a sheikh, he keeps it from expanding to other relatives. He added, however, that jalwa is extremely rare in his tribe.

Administrative detention is another major human rights issue. Ram explained that women and girls at risk of being the victim of an honor crime may be jailed, in the same centers as actual criminals, for their protection. Governors use the 1954 Crime Prevention Law to authorize such detentions, though the law is meant to be applied only to “persons who are a danger to others.” She described one case where a girl spent 7 to 10 years in jail because her family had threatened to kill her. Ram said that this girl may have been saved from being the victim of an honor killing, but she was also entirely stripped of her freedom for nearly a decade. In other cases, women are imprisoned for much longer, up to 20 or 30 years.[20]

Culture: Certain cultural aspects of tribal tradition can also interfere with Jordan’s legal system. According to Dr. Almadi, reputation is still very important to families as it can dictate social interactions with others. Thus, for crimes involving honor, especially against women and girls, many families feel pressured to keep the matter private within the tribe. Civil courts add more visibility to a case which have the potential to ruin a family’s reputation. Sheikh Talal commented that he prefers to resolve disputes tribally to respect the privacy concerns of his members. However, Ghaith questioned the effect of such pressures on justice; if people prefer to take their case to civil courts, issues of privacy, honor, and shame should not barrier.

Theme 2: The positive question.

The greatest benefits to the coexistence of tribal law and civil law in Jordan were stability, accessibility, cooperation, and culture.

Stability: Every participant felt that the single most important function that tribal law serves is security. The tribal system helps keep society safe because it is fast and prevents revenge. After a crime takes place, the tribe generally intervenes first to reach an initial ceasefire, and then the matter proceeds to civil courts. Tribes are quick to implement peacekeeping measures, and the lack of procedural formality means a resolution can be achieved much faster. According to Dr. Almadi, for as long as the case is open, the victim’s family lives in fear. Tribes also prevent revenge. Ram explained that courts may be able to imprison the criminal, but it cannot stop the victim’s family from seeking revenge. Only tribes have that power. Doha furthered that many Jordanian families are very traditional; they care about their honor and will defend their family name, regardless of the consequences in order to not appear weak. Doha referred to the previous example of the man who killed his daughter and his daughter’s lover. The lover’s father was outraged at the murder of his son and attempted to gather people to kill the man. Had the tribes and public security not interfered, there would have been an intra-tribal war. Even formally sentencing and imprisoning the man would not assuage the lover’s father, who most likely would still seek revenge to restore his family’s honor. Finally, people in Jordan respect the tribes. For many, the connection is personal, cultural, and religious. According to Ram, for serious cases like murder, the government actually encourages tribal law to take precedence because they know Jordanians respect their sheikh more than a civil court judge.

Accessibility: The biggest reason that Jordanians prefer not to engage with civil law is pragmatism. According to several interviewees, the tribal system is accessible: it is cheaper as it doesn’t require legal fees and transportation to Amman; it is quicker and can resolve issues in a few weeks or months; it is simpler without complex paperwork and technical language; and, it is physically reachable as tribal networks touch even the most rural parts of Jordan. Doha said that if the sheikh is honest, representable, and respectable, then he can resolve disputes quickly and efficiently. Thus, sheikhs are particularly effective arbitrators. Sheikh Talal also supported the idea of accessibility, recounting numerous people who came to him instead of going to civil courts because they know the tribal process is quicker and less expensive.

Cooperation: Modernizing pressures from Jordanians and the international community have improved tribal and civil law. All participants, for example, supported the limitation of jalwa. Due to a 1987 agreement between the state and tribal leaders, jalwa was reduced from extending to five generations of family members to only two. Dr. Ali added that even though relatives with a second degree of kinship can be included, most cases today only require that immediate family members relocate – reflecting the practical difficulties in uprooting entire communities. Jordan’s public security police are also involved in supervising atwa and jalwa, demonstrating the capacity for positive cooperation between the government and tribes. Other recent legislative changes include the abolishment of Article 308 of Jordan’s penal code (which allowed rapists to avoid punishment by marrying their victim) in August 2017, as well as amending Article 98 which allowed judges to hand down reduced sentences in cases of crimes against women also in 2017.[21] Ram said that further improvements have been made regarding the administrative detention of women. Collaboration between civil society organizations and the Jordanian government in 2018 led to the opening of Dar Amneh, an alternative to prisons for women placed under administrative detention.[22] Literally the “house of safety,” Dar Amneh is one of the very few facilities across Joran meant to protect women against misapplication of Jordan’s Crime Prevention law which has yet to be amended. Though it may be slow, cooperation between tribal, state, and civil society institutions certainly is possible and effective.

Culture: In general, tribal law in Jordan is viewed favorably. Although people certainly do not agree with every aspect of the tribal system, but when viewed holistically, the system reflects the people themselves. The law must reflect the culture of the people, according to Sheik Talal, and civil courts are missing that cultural aspect. However, current legal codes, however, are 70% based on French code and 30% on British code. Thus, the formal legal system fails to consider the needs of Jordanian civil society. A 2014 survey conducted by the Program on Governance and Local Development (GLD) quantifies the public sentiment well. Conducted among 1,4999 Jordanians, the survey found that 29% of participants preferred that tribal law be employed to solve conflicts involving murder, and 59% favored a mix of tribal and civil law. Only 12% of participants wanted the formal court system and government officials to resolve conflicts involving murder.[23] Ghaith concurred, explaining that even people who generally disagree with tribal dispute resolution methods still support tribal law when it comes to blood crimes, like murder. Sheikh Talal shared an example that highlights a foundational difference between civil law and tribal law. Western legal codes, he says, ascribe guilt to one person and accordingly, punish only one person. Jordanians, however, have deep family loyalty, and the basic unit of identification in Jordanian civil society is the family.[24] Thus, an injury to one is an injury to all, and therein lies the basis for collective responsibility and collective punishment. Tribal law reflects this reality. In the GLD survey, three-fourths of respondents identified as a member of a tribe. Civil law ignores critical parts of their identity, so many feel that tribal law better solves their needs. Ghaith pointed out that the King and Queen of Jordan are very secular and modern. They were educated outside of Jordan and speak English fluently. Yet, the country is still traditional and conservative and he believes that is because of tribal influence.

Theme 3: A Way Forward

The current state of legal plurality is complicated. To gather a macro-level understanding, each participant was asked to describe the way forward for Jordan’s legal system, taking into consideration the positive and negative aspects of tribal law and civil law. The responses are summarized in Table 1 below:

Five of the interviewees want to see tribal law continue in some capacity either as a separate but complementary legal system or by integrating it into the state legal system. Three participants prefer that civil law assume complete jurisdiction over all legal matters in Jordan. Under this framework, tribes would fill a purely social role, only existing as a unit of identification and organization. Every participant agreed, however, that the civil court system needs to be strengthened significantly before it can wholly replace tribal law and effectively serve the country.

Table 1: Models of a Pluralistic System

Discussion and Recommendations

In the developing world, an estimated 80-90% of disputes are handled outside of the state justice system.[25] The percentage in Jordan is likely lower but still very high, proving either a preference or need for the informal legal system. It seems clear that Jordanians are not fundamentally opposed to the idea of state-imposed justice, nor are they opposed to the concept of rule of law. Although a normative or ethical preference for tribal law may exist, the more likely reason for high usage is functional. Tribal law addresses Jordanians’ practical needs and is compatible with their culture. It also addresses the needs of the state, and as a result, it cannot be ignored by international developmental organizations.

However, tribal law, in its current state, is also unsustainable. Jordanian society in the last decade has become more heterogeneous. Dr. Matruk explained that demographics are changing due to immigration and refugees inflows from Iraq, Yemen, Sudan, Somalia, and most notably Syria. Estimates claim that refugees account for 10 to 20% of Jordan’s population, an exceedingly large proportion for such a small country. Put another way, roughly 1 in every 14 individuals is a refugee.[26] Furthermore, Dr. Matruk observes that the tribal system depends on respect for specific values and allegiance to one’s community – characteristics that foreigners do not share. Additionally, in an increasingly globalized world, Jordan’s internal politics are visible on the world stage and relate to Jordan’s relationships with other countries. Aid and developmental support come with certain requirements for human rights protections, and international bodies like the United Nations and Human Rights Watch, among others, are interested in bringing democratic rights, proper humanitarian conditions, and formal legal systems to countries like Jordan. Furthermore. urbanization over the last decade has brought individuals from diverse backgrounds into the same cities and neighborhoods. Technology is also connecting people, spreading information, and creating networks like never before. These changes especially affect Jordan’s youth as they grow up with new perspectives never before shared by previous generations. The Middle East has seen the impact that grassroots demonstration, specifically during the Arab Spring, can have on political change, and civil society organizations in Jordan may similarly have a great impact on progress.

With these changes in mind, the space for legal pluralism is shrinking. As the Kingdom balances sharp differences between the country’s urban and rural areas, it must also work towards developing strong, sustainable state institutions for future success. Simultaneously, tribes ought to increasingly fill a social role as opposed to a political or administrative one. Their position as keepers of culture and tradition in Jordan is important and should not be threatened; however formal institutions ought to be strengthened so they no longer rely on tribal leaders to carry out functions of the state. Reforming the formal legal system in this way requires “a host of secondary supportive conditions, involving a confluence of social, economic, cultural, and political factors.”[27] Critically, these conditions cannot be met in Jordan if rule of law development is conducted the same way it has been, unsuccessfully, in the past—by equating progress with Westernization. Rather than an unfinished stage of legal development, legal pluralism should be viewed as a reality in its own right.[28]

The following recommendations are offered in order to achieve this goal:

Enhance state security: Maintaining security is an essential function of a state, and an arena in which citizens should trust the government. Currently, tribes employ jalwa (which public security police often facilitate) to separate feuding parties and prevent further bloodshed. However, this practice severely infringes on the rights of individuals who are in no way involved in the crime, except for a familial relation to the perpetrator. Elderly citizens may be removed from medical treatment or care, students may be forced to drop out of university, and business owners and farmers may lose their livelihood.[29] In concurrence with the interviewees, the government and tribes should agree to end the practice of jalwa. Before this can happen, the government ought to provide greater stabilizing measures to fill the security gap such as increased public police presence for the victim’s family and strengthened repercussions for revenge-inspired violence. Of course, jalwa responds to a security concern as much as it does a cultural one. Thus, tribes still have a large role to play in calming emotions and mediating peace between families. Critically, this role is social, not governmental. Ending jalwa is uniquely important because the practice undermines the state’s legitimacy as the sole enforcer of the law.

Strengthen protections for women: Transition towards a secular rights system has led to the loss of protections for women once available at the tribal level. But, at the same time, women cannot readily access justice through the courts.[30] Sheikh Talal believes that civil courts would need to significantly improve in the area of women’s rights before he would feel comfortable letting cases be handled outside his tribe. Civil law simply does not view women with the same respect. For example, until 2017, Jordan’s penal code allowed a rapist to avoid jail time by marrying his victim. Though that article is now abolished, Sheikh Talal says that in his experience, honor crimes are rarely punished for more than six months. He explained that in tribal customs, however, a crime against a woman is taken extremely seriously and is considered the equivalent of four crimes.[31]

Streamline formal processes: Jordanian society values social cohesion. A dispute causes tension, and a lengthy resolution exacerbates such tension. Tribal law addresses this cultural condition by prioritizing a quick peacemaking process over all else, even due process. While civil courts should not go so far as to ignore due process, the Jordanian government, in collaboration with legal development organizations, should work to make the case management process swift and efficient by increasing the technology and resources available to state courts.

Increase access: Legal assistance is currently prohibitively expensive for the majority of Jordanians. The government can make judicial systems accessible by expanding the reach of state justice services, establishing mobile courts, incentivizing judges to work in rural areas, subsidizing transportation to cities where legal aid is available, and training community-based paralegals to enhance the quality of justice as well. Some combination of these practices have worked well in other countries seeking to expand rural access to legal services and would be worth considering for the Jordanian context.

Socialization and education: Civil law currently suffers from a perception problem. Ghaith explained that many Jordanians have lost hope in the formal legal system because of long, complicated processes and corruption. Often, civil court outcomes are seen as a miscarriage of justice. Dr. Almadi suggests robust programs aimed at rural areas to educate them on the benefits of due process, the process of litigation, and state-imposed punishment. He also believes that the high-level of education in Jordan should facilitate such socialization.

Additionally, the following recommendations are offered to international organizations, aid agencies, and non-governmental organizations:

Understand the tenets of tribal justice: Tribal law is a peacemaking process, not a punitive one. Justice is achieved only when retribution has been paid, honor has been restored, and both parties feel satisfied. Western tribunals focus on the victim: they ascertain his guilt, assess the nature of his crime, and determine a suitable punishment. Justice, therefore, is achieved when the right man is caught and penalized. With Jordanian custom, however, the focus is much larger; it includes the perpetrator, his family, the victim and the victim’s family (and in a symbolic sense, the community at large). All parties affected have a right to be part of the resolution, and an unsatisfying resolution, therefore, motivates revenge. The tenets of tribal justice are fundamental to Jordanian society, and no legal system can achieve sustainable and permanent peace without this understanding. International bodies ought to work with local authorities to propose, create, and implement reforms with such understanding in mind.

Separate human rights failures from “backward culture” or Islam: A prevalent feature of every interview was an insistence on dispelling misconceptions about Islam and Middle Eastern culture. Tribal customs are based in history and not in religion, evidenced by the fact that they are practiced by Druze and Christian communities in the MENA region and they are extremely uncommon in Muslim countries outside MENA.[32] Moreover, tribal societies predate Islam. Dr. Ali noted that since the advent of Islam, religion has positively influenced tribal culture especially with regard to the treatment of women. For example, honor killings, though seen in every region of the world, predominantly occur in Muslim, Hindu, and Sikh communities with the highest rates seen in South Asia, the Middle East and North Africa. However, it is France’s 1810 Penal Code created under Napoleon, which allowed the murder of unfaithful women by their husbands but not vice versa, that provided the legal framework for honor killings across the Arab world. Napoleonic code inspired Ottoman law, both of which were imposed on countries across the Middle East.[33] Moreover, many legal scholars argue that the impact of honor killings on women’s rights is not significantly different from that of “crime of passion” laws in the West.

Conclusion

The introduction of this paper established the legal history of Jordan as it related to the contemporary cultural context, the introduction of state governance, and the present-day demographics of tribal communities across the north, south, and middle of Jordan. The paper then summarized the literature regarding rule of law development theory, orthodox and contemporary, as well as the complications that arise when applied to legally pluralistic societies. Then tribal law and civil law in Jordan, their coexistence and the ways that each enables and hinders the rule of law in Jordan was analyzed. Finally, Table 1 summarizes the opportunity for legal pluralism in Jordan. The paper then considers the reality of legal pluralism and offers recommendations to that end.

In many ways, Jordan’s struggle is similar to other countries, and many of the recommendations presented here can be useful for other contexts. From Latin America to Africa to Oceania, legal pluralism is a defining feature of nearly all postcolonial countries attempting to navigate the imprecisely defined jurisdiction of their formal and informal legal systems. Weak institutions, political or ethnic conflict, corruption, and poverty further hinder reform efforts. Fortunately, Jordan’s path forward should not be as burdened. Compared to its neighbors and other postcolonial states, Jordan witnesses far lower levels of violence and corruption and enjoys relatively high levels of education, female empowerment, and stable institutions. However, Jordan’s reform efforts need to be uniquely tailored to reflect the country’s history, culture, demographics, and values. Legal reform intervention often fails because development organizations forget that all institutions, legal or otherwise, require the support of people to function. Integration of tribal customary law into Jordan’s civil codes requires rigorous, transparent, and continued dialogue between tribal leaders, government officials, developmental organizations, and most of all, the Jordanian people. The difference between designing solutions that seem to meet people’s needs and ones that actually do is understanding local religious, cultural, geographic, political nuances – a daunting prospect but nonetheless necessary.

Limitations

With the finding and discussion in mind, several limitations present themselves. The most significant shortcoming is the method of data collection itself—video conferencing interviews. Although present circumstances prevent any other form of interviews, qualitative research greatly benefits from field-based observations and notes, neither of which can be collected from afar. Specifically, in regards to the interview with Sheikh Talal, research could have been enriched had the author been able to visit his village and observe how he interacts with the members of his tribe. These interactions could reveal information on relevant topics such as power dynamics, social organization, and attitudes towards various community issues. Such observations could also test the reliability of information as well and help reduce bias during the interviews.

 Additionally, a larger, more balanced sample size could have been reached. First, there were more male interviewees than female, which is problematic because large discrepancies exist between men and women in the access to and quality of justice. Interviewing more women could have shed light on issues such as honor killings, representation in court, and the pressures related to shame and honor. Second, all of the interviewees were active participants in the current legal system which implies some level of assent. Hearing from individuals that are a part of non-governmental organizations or non-profits working to improve the system could provide insight on current reform efforts and barriers to progress. Finally, research needs stories from individuals who have been through the legal process themselves, who have faced tribal punishments such as jalwa, or have been the victim in cases where the offender received a reduced sentence. These individuals are hard to find due to the privacy and secrecy surrounding criminal cases in Jordan, but their perspective is necessary to comprehensively assess the impact of current legal practices in Jordan.

Future Research

This paper covers a fairly broad topic, leaving ample room for further research. To address the limitations of this study, future academics might want to utilize a more anecdotal approach to hear the experiences of individuals who have been part of the tribal or formal legal system as a victim, perpetrator, or family member. Another approach is to collect public opinion data across various demographics such as gender, age, education, and geographic area. Additionally, past disputes could be analyzed to identify trends and relationships in the dispute resolution process.

Many subthemes presented in this paper could also be explored further. The practice of jalwa is unique to Jordanian society and warrants further study to better understand its dual role as both a punitive and peacemaking tool for tribes. Its continued usage over centuries of growth is evidence of a deeply rooted dependence on tribal resolution methods. Another area that warrants further examination is the relationship between tribes and the government, exploring how they compete, support, and rely on each other. Future research could also look at women’s rights: differences in protection under tribal law and civil law, mitigated sentencing for crimes against women, ease of access to legal recourse, social pressures and issues of honor, the influence of Islam on tribal custom regarding women, administrative detention, and honor crimes.

Finally, several cross-sectional themes would be fascinating to study in a comparative context, such as the concept of revenge and retributive justice, collective responsibility and collective punishment, tribal kinship and organization, honor crimes and perception of women, and the culture of shame, honor, and privacy.

Works Cited

Primary Sources:

Dr. Matruk, interview by author, March 29, 2020.

Dr. Almadi, interview by author, April 7, 2020.

Dr. Ali, interview by author, April 10, 2020.

Sheikh Talal, interview by author, April 11, 2020.

Ghaith, interview by author, April 14, 2020.

Doha, interview by author, April 18, 2020.

Ram, interview by author, April 18, 2020.

Wesam, interview by author, April 18, 2020.

Secondary Sources:

Azzeh, Laila. “Eviction of entire clan of a murder suspect ‘outrageous violation of human rights.” The Jordan Times, January 16, 2016. https://www.jordantimes.com/news/local/eviction-entire-clan-murder-suspect-outrageous-violation-human-rights%E2%80%99.

Dodeen, Mahmoud. “Informal Justice: Rule of Law and Dispute Resolution in Palestine.” Birzeit University Institute of Law. 2006.

Farran, Sue. “Is Legal Pluralism an Obstacle to Human Rights? Considerations from the South Pacific.” Journal of Legal Pluralism and Unofficial Law. December 2013.

Furr, Ann and Muwafaq Al-Serhan. “Tribal Customary Law in Jordan.” South Carolina Journal of International Law and Business. 2008.

Guegnanic, Gildas, Madeleine Cravens, and Lisa Mascheroni. “Women Deprived of Liberty: the Case of Jordan.” Amman Center for Human Rights Studies. 2018.

Harper, Erica. “Traditional Justice: Practitioners’ Perspectives – Engaging with Customary Justice Systems.” International Development Law Organization. 2011.

Johnstone, Naomi. “Tribal Dispute Resolution and Women’s Access to Justice in Jordan.” WANA Institute. June 2015.

“Jordan: End arbitrary detention of women who disobey male guardians or have unsanctioned relationships.” Amnesty International, October 23, 2019. https://www.amnesty.org/en/latest /news/2019/10/jordan-end-arbitrary-detention-of-women-who-disobey-male-guardians-or-have-unsanctioned-relationships/

Kao, Kristen. “Do Jordan’s tribes challenge or strengthen the state?” The Washington Post, May 28, 2015. https://www.washingtonpost.com/news/monkey-cage/wp/2015/05/28/do-jordans-tribes-challenge-or-strengthen-the-state/al-Krenawi, Alean. “The Struggle of Bedouin-Arab Women in a Transitional Society.” UC Berkeley Global, Area, and International Archive. 2002.

Lousada, Lily. “Tribal Customary Law in Jordan: Sign of a weak state or opportunity for legal pluralism?” The Huffington Post, June 15, 2016. https://www.huffpost.com/entry/tribal-customary-law-in-j_b_10448880?guccounter=1Swenson, Geoffrey. “Legal Pluralism in Theory and Practice.” International Studies Review, January 2018.

Tamanaha, Brian. 2011. “The Rule of Law and Legal Pluralism in Development.” Washington University in St. Louis School of Law’s Legal Studies Research Paper Series, July 2011.

Thompson, Rosie-Lyse. “Jordanian women imprisoned in name of family honor.” Reuters, August 16, 2017. https://www.reuters.com/article/us-jordan-women-prison/jordanian-women-imprisoned-in-name-of-family-honor-idUSKCN1AW0IO

Turnbull, Elizabeth. “Jordan remains second largest refugee host globally — UNHCR.” The Jordan Times, Jul 28, 2019. https://www.jordantimes.com/news/local/jordan-remains-second-largest-refugee-host-globally-%E2%80%94-unhcr

Watkins, Jessica. “Seeking Justice: Tribal Dispute Resolution and Societal Transformation in Jordan.” International Journal of Middle East Studies. February 2014.

Weir, Laura. “From Diwan to Palace: Jordanian Tribal Politics and Elections.” Electronic Thesis or Dissertation. Case Western Reserve University. (2013).

References

[1] Ann Furr, Tribal Customary Law in Jordan, South Carolina Journal of International Law and Business, (2008).

[2] Furr (2008).

[3] Mahmoud Dodeen, Informal Justice: Rule of Law and Dispute Resolution in Palestine, Birzeit University Institute of Law, (2006).

[4] Naomi Johnstone, Tribal Dispute Resolution and Women’s Access to Justice in Jordan, WANA Institute, (2015).

[5] Furr (2008).

[6] Johnstone (2015).

[7] Jessica Watkins, Seeking Justice: Tribal Dispute Resolution and Societal Transformation in Jordan, International Journal of Middle East Studies, (2014).

[8] Johnstone (2015).

[9] Kristen Kao, “Do Jordan’s tribes challenge or strengthen the state?” The Washington Post, (2015).

[10] Laura Weir, “From Diwan to Palace: Jordanian Tribal Politics and Elections,” Case Western Reserve University. (2013).

[11] Brian Tamanaha, The Rule of Law and Legal Pluralism in Development, Washington University in St. Louis School of Law’s Legal Studies Research Paper Series, (2011),

[12] Geoffrey Swenson, Legal Pluralism in Theory and Practice, International Studies Review, (2018).

[13] Tamanaha (2011).

[14] Tamanaha (2011).

[15] Swenson (2018).

[16] Sue Farran, Is Legal Pluralism an Obstacle to Human Rights? Considerations from the South Pacific, Journal of Legal Pluralism and Unofficial Law, (2013).

[17] Tamanaha (2011).

[18] Erica Harper, Engaging with Customary Justice Systems, International Development Law Organization, (2011).

[19] Tamanaha (2011).

[20] Rosie-Lyse Thompson, Jordanian women imprisoned in name of family honor, Reuters, (2017).

[21] Gildas Guegnanic et al., Women Deprived of Liberty: the Case of Jordan, Amman Center for Human Rights Studies, (2018).

[22] Jordan: End arbitrary detention of women who disobey male guardians or have unsanctioned relationships, Amnesty International, (2019).

[23] Kao (2015).

[24] Alean al-Krenawi, The Struggle of Bedouin-Arab Women in a Transitional Society, UC Berkeley Global, Area, and International Archive, (2002).

[25] Swenson (2018).

[26] Elizabeth Turnbull, Jordan remains second largest refugee host globally — UNHCR, The Jordan Times, (2019).

[27] Tamanaha (2011).

[28] Ibid.

[29] Laila Azzeh, Eviction of entire clan of a murder suspect ‘outrageous violation of human rights’, The Jordan Times, (2016).

[30] Johnstone (2015).

[31] A crime against a women receiving the same punishment as that of four crimes, while admirable in terms of respect for women, of course has its own implications in terms of fairness in the law. Thus, the example given is not meant to insinuate that the formal legal system should also have such a decree; rather, it serves only to demonstrate the disparity between protections for women under the state and tribal legal systems.

[32] Johnstone (2015).

[33] Article 308 of Jordan’s Penal Code, for example is a remnant of Ottoman code derived from French penal code. France only removed a similar provision in 1994, Greece in 2018, and many other countries still have variations of “marry your rapist” laws including Russia, the Philippines, and Florida and Missouri in the United States.