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Aw As Adjunct to Custom?

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Aw As Adjunct to Custom? LAW AS ADJUNCT TO CUSTOM? Abkhaz custom and law in today’s state-building and ‘modernisation’ - (Studied through dispute resolution) DISSERTATION SUBMITTED TO THE SCHOOL OF ANTHROPOLOGY AND CONSERVATION AT THE UNIVERSITY OF KENT FOR THE DEGREE OF DOCTOR OF PHILOSOPHY 12 FEBRUARY 2015 By Michael Costello Examiners: Professor Michael Fischer Associate Professor Jacob Rigi Supervisor: Lecturer Glenn Bowman 1 LAW AS ADJUNCT TO CUSTOM? The relationship between Abkhaz custom and law in today’s state-building and ‘modernisation’ - (Studied through dispute resolution) Abstract The setting for research is Abkhazia a small country south of the Caucasus Mountains and bordering Europe and the Near East. The Abkhaz hold onto custom – apswara – to make of state law an adjunct to custom as the state strives to strengthen its powers to ‘modernise’ along capitalist lines. This institution of a parallel-cum-interwoven and oppositional existence of practices and the laws questions the relationship of the two in a novel way. The bases of apswara are its concepts of communality and fairness. Profound transformations have followed the dissolution of the Soviet Union, and the breakaway from and subsequent war with Georgia, none of which have brought the bright prospects that were hoped-for with independence. The element of hope in post-Soviet nostalgia provides pointers to what the Abkhaz seek to enact for their future, to decide the course of change that entertains the possibility of a non-capitalist modernisation route and a customary state. Apswara is founded on the direct participatory democracy of non-state regulation. It draws members of all ethnicities into the generation of nationalist self-awareness that transcends ethnicity and religions, and forms around sacred shrines and decisions taken by popular assemblies. It has topical significance for other societies where custom and law co-habit through contestation, and questions some widely accepted theories about the relationship of the two, as well as problematising anthropological concepts of ‘legal pluralism’ and post-Sovietics. The study suggests new topics for research. 2 I hereby declare that this dissertation is the result of my own fieldwork and reflection under the supervision of Dr. Glenn Bowman, Lecturer in Social Anthropology at the School of Anthropology and Conservation of the University of Kent. ________________________________ Michael Costello 15 February, 2015 3 TABLE OF CONTENTS Acknowledgements Chapter 1 Introduction ……………………………………. 9 1.1 Field delimitations – apsuara and apsua tsas ………….. 14 1.1.1 Journey in, through and out ………………………. 18 1.1.2 The policeman ……………………………………. 22 1.1.3 Driven to court – no alternatives …………………. 24 1.1.4 Both Custom and Law ……………………………. 26 1.2 Abkhazia, the Abkhaz and Abkhazians ……………….. 27 1.2.1 Abkhazia ………………………………………….. 33 1.2.2 Legacies of the past ………………………………. 37 1.2.3 Demographic changes ……………………………. 42 Chapter 2 Literature review …………………………….. 48 2.1 Custom, law and the state ………………………………. 49 2.2 Definitions........................................................................... 52 Bohannan, Gluckman, Diamond ……………………….. 62 2.4 Legal pluralism ………………………………………….. 73 2.4.1 Restorative justice ………………………………… 81 2.5 The ethnography of Abkhazia ………………………….. 83 2.5.1 Writing in “the ethnographic past tense”…………. 86 2.6 Post- Soviet ethnography and ‘transitology’…………… 88 Chapter 3 Methodology …………………………………... 97 3.1 Setting out ………………………………………………. 100 3.2 Theory ……………………………………………………. 100 3.3 Methods ………………………………………………….. 103 3.3.1 Observation ……………………………………….. 103 3.3.2 Interviewing ………………………………………. 104 3.3.3 Analysis of texts ………………………………….. 104 3.4 Objectives ………………………………………………... 104 3.5 Some General Points on Methods ………………………. 104 3.6 Questions …………………………………………………. 108 3.7 Advocacy and participant Observation ………………... 109 Chapter 4 Evidential cases ………………………………. 112 4.1 What law? Adoption outside the law …………………. .114 4.2 The law as instrument of custom – a village idyll, harmony and feud? ………………………118 4.2.1 Feud, reconciliation ………………………………. 119 4 4.3 Filicide – breaking the law? ……………………………. 126 4.4 Mediation – extra-legal settlement - legal agencies connive ………………………………….. 128 4.4.1 Judge turns to custom after knifing ………………. 128 4.4.2 Honour ……………………………………………. 130 4.4.3 Honour and dignity – the watchman and the thief... 131 4.5 Custom evolving ………………………………………… 133 4.5.1 Shaming – woman takes son to local assembly – obshchina, skhod ………………………………… 133 4.5.2 Son tames father …………………………………. 139 4.5.3 Changing customs ……………………………….. 140 4.6 Resort to the law and to custom? ……………………… 143 4.6.1 Child run over – qualified use of law as an adjunct …………………………………………… 143 4.6.2 Attempts on president’s life - shame, suicide – law versus kinship …………………………….. 145 4.7 Defying the law in marriage …………………………… 152 4.7.1 Abductions and arranged marriage ……………… 153 4.7.2 Inheriting a house ……………………………….. 157 4.8 Neither custom nor law ………………………………... 160 4.8.1 Kin outweighs the judge – the axe woman ……… 160 4.8.2 Cultural defence – grey area …………………….. 162 4.9 Resume of elements of customary practices …………. 167 Chapter 5 Distortions, contradictions, changing times ………………………………174 5.1 What custom cannot tackle today ……………………...174 5.1.1 Corruption ………………………………………...175 5.1.2 Witchcraft ……………………………………….. 177 5.1.3 Powerless to tackle changes …………………….. 180 5.1.4 Debts and insults ………………………………….181 5.1.5 Lineage pressures – drunken driver gets off Scott free …………………………………182 5.1.6 Big men? Gangsters? - a society of tensions ……182 5.1.7 Practical challenges to values of apswara ………..184 5.2 Outside of custom and law -Zuleika’s case ……………185 5.2.1 An internal “Other”? …………………………….. 190 5.2.2 Distance …………………………………………..191 Chapter 6 Nationalist modernisation …………………192 6.1 Abkhaz nationalist thought, origins …………………...196 6.1.1 The Soviet ethnographic setting ………... .205 6.1.2 Abkhaz nationalism and ethnos theory ………….. 207 5 6.2 Ethnicity or citizenship- Abkhaz or Abkhazian? ……..212 6.2.1 Ethnic transition and slippage ……………………. 218 Chapter 7 Shrine-sharing a single belief system for different religions …………………………….. 221 7.1 Unanimity principle – shrines …………………………... 231 7.2 More on unanimity… ……………………………………. 238 7.2.1 Contradictions………………………………………244 Chapter 8 What now – where to start? ……………….. 246 8.1 “Failure of the Soviet Union?” and “Nostalgia”……… 246 8.2 Nostalgia - phantom of the past or the present ………… 247 8.2.1 Nostalgia abstracted ………………………. 248 8.2.2 A political agenda or ideology ……………. 253 8.2.3 Post-Soviet nostalgia for the present ……… 255 8.2.4 Present and future ………………………… 257 8.3 Transition or transformation? ………………………..... 258 8.4 Nationalist modernisation – capitalism? ………………. 262 Chapter 9 State building …………………………………. 266 9.1 What kind of state ………………………………………. 266 9.1.1 Head of state’s perceptions ……………………….. 269 9.2 Moral economy and trust ……………………………….. 274 Chapter 10 Alternatives for the future …………………. 282 10.1 A customary state? ………………………………………. 286 10.2 Conclusions ………………………………………………. 290 10.2.1 What found new - openings for further research 292 Bibliography 300 Appendix 1 Comrades’ Courts 321 Appendix 2 Constitution and Assemblies 322 Appendix 3 Council of Shrine Keepers 324 6 7 Acknowledgements I express a particular gratitude to Dr Peter Parkes, who put me on the road to research on the Abkhaz from undergraduate days. He was my first supervisor for this dissertation and was followed by Professor Roger Just and then Senior Lecturer Glenn Bowman, with the assistance of Dr Matt Hodges and Dr Melissa Demian of the University of Kent. My induction into Abkhazia owes a lot to the help of Professor George Hewitt of London University and his Abkhaz colleague Dr Vyacheslav Chirikba of the universities of Leiden and Abkhazia, who gave me valuable contacts in the field. Outstanding among these was Professor Vasilii Avidzba, director of the D. Gulia Institute for Research and the Study of Humanities in Sukhum, the members of its departments and the library staff, all of whom were totally approachable. Thanks go to many other academics in Abkhazia, including Dr. Mira Konstantinovna Khotelashvili (Inal-ipa) who was invaluable for details on historian and ethnologist Professor Shalva Inal-ipa (deceased) and for access to his papers. Nothing would have been possible without the help of the Eleanora Kohonia- Anzor Chepia family, their three children, Abas, Des and Kan and other kin and friends, who allowed me to stay in their homes in town and villages. I am similarly indebted, to Dr Fatima and Dr Beslan Kamkiia for stays in their homes and meeting their family and neighbours. Collaborative assistance from Dr Kamkia included our joint publication of a book in Russian on Abkhaz custom and law and their practices (2013). Gratitude is felt to the many informants in Abkhazia, people in the legal professions, members of NGOs, including Dr Arda Inal-ipa and her colleagues at the Sukhum Centre for Humanitarian Programmes, state administrators and people of standing within customary structures. It is with great sadness that I reflect on the death in May of this year of Nikuola Khashig, an elder for whose kindness and the willingness with which he informed me time and time again I shall always be grateful. I met with the generous friendship and the willingness of all whom I approached to inform, talk, gossip and make life enjoyable. I am indebted to the regulars of an oft-used watering hole on the pavement just off Sukhum’s Prospekt Mira.
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