Michael Costello

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Law as adjunct to Custom in Abkhazia

Michael Costello (PhD Candidate, University of Kent)

Field work among the Abkhaz of the Caucasus raises questions about a number of current paradigms regarding relationships of Law to Custom, post-Sovietics and ‘modernisation’ as the Pagan (self-description) Abkhaz seek to situate changed social relations within their apsuara customary rules.

There are parallels and differences here with the employment by Moslem Bosnians of Halal, as a “rhetorical moral trope” when seeking order out of the chaos of war and the destruction of socialist, state structures.  

The different views on how apsuara may be retained within a legal framework are grounded on shifting conceptions of how to accommodate the fundamental differences of customary contingency and statutory laws. There is an attempt to square the circle of laws within customs in an institutional relationship not found in other societies.

In Abkhazia there are the trappings of a modern state: an elected parliament,  president, a constitution, ‘laws’, police and courts yet the Abkhaz conduct their daily business with no interference from these and directly order everything that affects them as individuals, families and lineages by enforcing non-state customary practices through sanctions that include banishing violators of the order of apsuara, and resonating with Marcus Banks’ contention that kinship has to do with how society is currently organised, and not the past, whatever the appeals to it for legitimation.    

A focus on dispute resolution in my research brought the elements of apsuara into sharp relief. There are cases of Mediterranean-type blood feud   and it is a categorical imperative that an individual must react to a perceived insult as he [sic] thinks fit, allowing for wounding or killing of an offender. This is justified by the obligations to defend honour and to ‘cleanse’ the lineage of any shame .

The customary procedures for dispute resolution place the maintenance of peace within a community above the establishing of individual guilt, thus displacing ‘guilt’ from the centrality it occupies in procedures of Common or Criminal law. There is no two tier-legal structure as, for instance, in Papua New Guinea, where ‘customary practices’ can be appealed against to state law , nor is there the ‘legal pluralism’ that some scholars identify in other societies.

An example: This summer Professor Pyotr Kvitsinia told me how he shot his son after he had confessed to raping and killing a neighbour’s daughter in their village of Atara: “If I had let the police intervene then however many years of prison he might have got, the neighbours would have crushed our family. By killing my son I crossed over to them [in family kinship sense], and now relations with the girl’s family are good – we greet one another and I was allowed to attend her funeral.”

When evidence, in a legal sense, is not available in a dispute, then oaths of innocence may be made before the deities which reside in sacred oaks or smithies, the anykha, or, at the highest levels, to the units of the Abkhazian supreme deity, Answa, which are addressed at the tops of hills and in what are otherwise Christian churches. The veracity of the oaths is not questioned and disputants are reconciled, as everyone knows that a false oath will visit savage retribution on the liar and on his lineage and its property for generations to come.

Another example: A dispute arose between two families after a young man from one killed another from a different family. The offender knifed the victim for the insult of throwing him to the ground three times in a wrestling contest. A well respected Elder, Nikuola Khashig, asked me: ”What would the point be of the matter going to a court and the young man being imprisoned?”, adding: “That would not have brought the young man back to life and, in effect, would have meant that two young men were ‘killed’, so to speak. No, the matter was settled between the families, with some difficulty and with my assistance. No one was imprisoned but the widow and children of the deceased young man are now provided for by the family of the man who killed her husband.” Only where customary practices fail to bring about a settlement and there is the danger of more bloodletting, might the agents of the law be brought in, and then only for a court to be told what sentence would be acceptable to the disputant families.

Seniority according to age supersedes civil rank as a judge put it to me: “It is very difficult for a policeman to challenge the behaviour of any clan member who is older than himself.”

On questions of national importance the country’s government might visit a shrine to seek guidance, as apsuara is understood to be endorsed by the deities. In the tough conditions that follow from the breakup of the Soviet state and economy there is active renovation of what are perceived as customary practices of the past. This poses a challenge to those in Abkhazia who are striving to build a state on ‘western’ capitalist lines, what they call ‘modernisation’.

For the moment custom holds sway. The institutions of the state are its adjuncts, are embedded in it. One informant put it to me: “If the law wants to interfere in custom then there will be war!” Even those who want to change the situation do not openly call for the abolition of apsuara. One such argued: “The real traditions of the people, their values and their customs can only be protected by a state which codifies apsuara and sees how these can be incorporated into laws”. As yet there is no methodology worked out for this.

The Abkhazians’ conceptions and practices raise questions about current anthropological theory on custom and law; on legal pluralism, state-building and anthropological thinking on nationalism, post-Soviet experiences and historicism.