It is common knowledge that in the 19th century many European colonial empires admitted or even supported the official use of local ´adat (customary law) in their colonies. This was mostly done out of necessity, for it was believed that a direct interference with the local tradition of administering justice would have provoked hostility from the local population and thus constitute a danger for colonial rule. The replacement of customary law, often regarded as “barbaric,” by “civilized” imperial law was thus postponed to a future time when the colonial peoples would have attained “maturity.” In the meantime, however, the colonial administration tried to obtain access to local customary law by inquiring into its rules and methods and by controlling its institutions. The local administrators and officers collected the rules of customary law from the local populations and assembled them into large corpuses. Most of these collections were written not in the native, but in the colonial languages. In several cases, the process of collecting ´adat aimed at an overall codification of the regional varieties of customary law.^[1] The official collection and codification generally served two purposes: first, to facilitate the control of the local courts’ activities, and second, to progressively alter certain rules and procedures of customary law that were perceived as contradicting universal moral or legal standards, or the central interests of the colonial power. Thus the local populations were supposed to be smoothly led on the progressive path to civilization.
This also holds true for Russia’s management of her imperial borderlands, the Caucasus and Central Asia.^[2] Here, however, official support of the use of ´adat had yet another rationality, since customary law was considered a bulwark against shari´a (Islamic law). Shari´a had been promoted by the North Caucasian Islamic resistance against Russian rule. In order to unite the Muslim communities of the North Caucasus, Islamic leaders tried to enforce the sole use of Islamic law, and declared all customary law to be non-Islamic or even heretical. In this situation, the Russian administration began to regard Islamic law per se – regardless of its actual content – as a danger to Russian rule in the North Caucasus. As Vladimir Bobrovnikov and Austin Jersild have recently shown, the Russian imperial discourse on the usefulness and potential of ´adat, but also on its disadvantages in comparison to imperial state law, continued until the last days of the Empire.^[3] Needless to say, the debate on the Caucasian Muslims’ “backwardness” and of Russia’s “civilization” in legal affairs was part and parcel of the general Orientalist discourse and played a major role in the image that the Russians had of themselves. To grant Muslims their “primitive” customary law was, among other things, a way to fix their lower cultural status.
The Russian policy to strengthen customary law made it necessary to gather information on the current ´adat provisions in remote areas of the Caucasus, and this was not an easy task. This article studies the results of two large collection campaigns undertaken in the 1840s and 1860s in the North Caucasus, with special reference to the mountain regions of Daghestan. It will be asked how the results were predetermined by the ideological approaches of the campaigns, and how the methods were refined in due course. According to the various ways of requesting, selecting, and arranging the material, the campaigns produced different types of customary law collections. At the end of the 19th century, however, it became obvious that customary law could be manipulated only to a certain degree, and all efforts at codification had failed. This was also admitted by the leading contemporary Russian historian of Caucasian customary law, Maksim M. Kovalevskii. On the basis of the ´adat material collected in the previous campaigns, Kovalevskii came to the conclusion that it had been a mistake to support customary law to the detriment of Islamic law; in his mind, Islamic law was in many regards “more civilized” than North Caucasian customary law, and more suitable to draw the Caucasian peoples nearer to “civilization.” By these conclusions, Kovalevskii questioned the fundaments of European colonial policy not only in the Northern Caucasus, but also in many other colonized countries.

FIRST COLLECTIONS AND CODIFICATIONS IN THE 1840S

Russia’s final advance into the North Caucasus began in the late-18th century, when local rulers (princes and khans) were taken into Russian service and their territories were step-by-step incorporated into the Empire. In the beginning, the government hoped to implant Russian law onto the traditional legal systems of the Caucasians. Already in 1793, General Gudovich opened special courts for Kabardinian clans (Central North Caucasus), and declared that all criminal acts such as murder, robbery, and theft would henceforth be judged according to Russian law. However, the Kabardinians opposed Russian interference with their law, and the old courts had to be reopened the next year. Similar failures were encountered in other regions like Daghestan.^[4]
The attempt to introduce Russian law codes in the North Caucasus was most of all hampered by the long Caucasian War, which practically covered the whole first half of the 19th century until the early 1860s. In Daghestan and Chechnya, Russia’s military advance provoked the fierce resistance of Muslim communities, which declared jihad in response. This jihad movement originated in the mountain village communities and aimed at moral purification and the construction of an ideal Islamic society. In the beginning the jihad was directed against the local Muslim khans, princes, and notables who refused to administer law according to the shari´a but kept to their ´adat, but soon the movement also turned against the Russians, who supported the local nobility. Under the leadership of three successive Imams, Ghazi-Muhammad (ca. 1829-32), Hamzat Bek (1832-34), and the famous Shamil (eg., 1834-1859, d. 1871), a jihad movement evolved that lasted for roughly thirty years and led to the establishment of an Islamic state in the Daghestani mountains and in Chechnya.^[5] Themselves students of Islamic law, the Imams Ghazi-Muhammad and Shamil legitimized their rule by the shari´a, and their rhetoric was full of Islamic symbols. Shamil at times even laid claim to the title of amir al-muslimin (synonymous to “Caliph”), and he had his chief mufti produce a treatise that defended his political, military, and administrative measures in the light of the classical authors of the Shafi´i school of law.^[6] The Imams were furthermore backed by influential Daghestani shaykhs of the Naqshbandiyya khalidiyya Sufi brotherhood; for this reason, the whole Caucasian Islamic resistance became known as miuridizm (after the term murid, which means “adherent of a Sufi shaykh”) – quite misleadingly, for Sufism was by far not as central to the motivation of the jihad as was the call for the implementation of Islamic law. To be sure, how far Islamic law was really implemented in the imamate is still open to question; the rhetoric of jihad, however, was deeply rooted in classical Islamic discourse. In Ghazi-Muhammad’s and Shamil’s writings, the local ´adat are depicted as un-Islamic, heretical, and Satanic.^[7]
In view of this formidable Islamic challenge, the Russians became more and more interested in local ´adat, which the tsarist administration perceived as a useful tool against the shari´a of the Imams. Yet the authorities deplored that they had only superficial knowledge of customary law, as well as of Islamic law, and practically lacked any control over local jurisdiction. The problem was first tackled in 1841 by Lieutenant-Commander D. S. Bibikov, who presided over the Chancellery for the Administration of the Pacified Mountain Peoples (Kantselariia po upravleniiu mirnymi gortsami, attached to the Commander-in-Chief of the Caucasian Line). Bibikov suggested a project to systematically collect information on both of the systems of indigenous law that coexisted in the mountaineer societies.^[8]
As to the shari´a, Bibikov proposed to identify the most important Arabic books on Islamic law that were in use in the Caucasus and to translate them into Russian. This would give the authorities a much-needed instrument to check the influence of the mullahs who were suspected of “interpreting the shari´a prescriptions arbitrarily.” As the Caucasian administration lacked the necessary skill for this project, it was suggested to entrust the Oriental Department of Kazan University with this task.^[9] In fact, it seems that in the following decade at least two Russian specialists produced valuable works on Islamic law. The first of these is the famous Hanafı law book Mukhtasar al-wiqaya (Kazan, 1845),^[10] edited and introduced by Mirza Aleksandr Kazembek, professor of Oriental languages in Kazan. The second book is a Russian manual of Islamic (especially Shafi´i) law for practical use in the administration of the South Caucasus (Izlozhenie nachal musul'manskogo zakonovedeniia, St. Petersburg, 1850). It was written by Nikolai Tornau, Vice-Governor of the Kaspiiskaia oblast' (which included parts of the South Caucasus and of Daghestan) between 1841 and 1845. These books made clear that Islamic law was intrinsically different from customary law: it was a written law, in a way even “codified” (although according to various schools of law, and with certain variations within each school) and thus controllable by the government if the latter decided to provide Islamic law a legal basis and an institutional frame in the Russian Empire.^[11]
As to customary law, Bibikov’s plan was to collect as much information as possible from all peoples of the North Caucasus, and then bring all the data together in a general volume that was probably conceived as a court manual for the whole of the North Caucasus. This part of Bibikov's ambitious program was indeed carried out. His short model questionnaire was forwarded to the Russian generals in the different North Caucasian territories, who were in charge of organizing the necessary fieldwork in their respective sections. The questionnaire consisted of only twelve general points. Three of them inquired after the social system of the local peoples (social classes and estates, prerogatives and rights of each estate, and their interrelations). Related to this complex was the question of how cases of disobedience toward the local nobility were punished. As to customary law proper, the questionnaire asked what the “general ceremony of ´adat jurisdiction” was like, and which cases were regulated by ´adat in the given society. Other points investigated specific aspects of the law: the relationship between husband and wife and between parents and children, as well as regulations for inheritance, including one point on “spiritual testaments.” Only the very last question asked for a description of “all kinds of crimes and their punishment.”^[12]
It is obvious that Bibikov's questionnaire had major shortcomings. It was clearly written from the perspective of the Tsarist Empire, a monarchy which heavily relied on its privileged nobility for most matters of administration, jurisdiction, and economy. Accordingly, Russian officers expected to find similar structures in Russia’s newly acquired colonies, and were ready to support them. This is most obvious from the first questions on the North Caucasian peoples’ social hierarchy and the rights of the local nobility, which were inadequate to many Caucasian regions where there was no powerful nobility, or where village communities organized themselves independently of the local princes. The North Caucasian clan organization, as well as the structure of the Daghestani village communities and their confederacies, was totally left out of sight. This orientation of the collection is also reflected in the fact that the actual work was to be carried out mainly by officers of the Russian army stemming from the Caucasian Muslim nobility. Furthermore, the questionnaire at times confused customary law with Islamic law; thus the special question on “spiritual testaments” does not belong to ´adat, but to shari´a, and accordingly all answers obtained on this question relate to regulations of Islamic law.^[13] However, the most striking flaw of the questionnaire was its conspicuous unbalance, for some of the twelve questions were mere repetitions of others, while the last question tackles almost ninety percent of all aspects of the law regulated by ´adat in Daghestani society. The fact that several questions aimed at basic ethnographic information, and did not refer to the legal system, reveals the Russians’ general lack of knowledge on the North Caucasian peoples.
However, the program had the merit of initiating the first large-scale investigation into North Caucasian customary law. As a result, four collections were submitted to the commander-in-chief of the North Caucasus in the following years. They describe the customary law of the Chechens and Kumyks (1843), the Balkarians and Digorians (1844), the mountaineers of the Vladikavkaz district (1844), and of the Circassians of the Black Sea Line (mainly Ossetians and Chechens, 1845).^[14]
Obviously due to the ongoing jihad in the Daghestani mountains, the only Daghestani people considered in this series were the Kumyks of the lowlands between the Terek and Sulak rivers.^[15] General-Major Freitag, under whose direction the corresponding part was achieved, laid special emphasis on the class system of the Kumyks and its historical genesis. Accordingly, almost two thirds of his collection (83 of 128 “items” or paragraphs) concern “the origin of the noblemen, the division of the Kumyk people in classes and their relations to one another.”^[16] What emerges is mainly a historical and ethnographical account of the region. The section on ´adat proper gives only a very general outline of the functioning of customary law, and provides few details on what is specific to the Kumyk ´adat, and what might distinguish their ´adat from the customary law of other North Caucasian peoples. Only in 1849, and on special request, Freitag provided two additional sets of information, especially on the amount of the kalym (trousseau; qalïm in Kumyk) and on punishments and fines for murder, injuries, and other violations.^[17] Obviously, Freitag was of the opinion that it was fruitless to collect detailed information on legal customs, for “the Kumyks always used to have the law of the more powerful.”^[18] Of course, such an observation – true or not – was meant to legitimize the advent of Russian law and order to the region.
In 1847, the generalized resume of all four ´adat collections was finished by Captain Ol’shevskii.^[19] This Svod (“Collection”) summarized the main features of customary law, like ´adat courts and informal arbitration, blood-revenge, blood-money, and compensation payments (which Ol’shevskii, however, lacks to distinguish from fines, called fidya in Arabic texts from the North Caucasus, paid to the local authority or community). The Svod also enlists the different amounts of money or kind to be taken from an offender among each of the peoples under scrutiny (except for the Kumyks, for Freitag’s corresponding data came too late to be incorporated). However, only a small part of Ol’shevskii’s text deals with the description of ´adat law; instead, it contains all kinds of historical and ethnographical information on the different peoples, with a large amount of detailed examples. Sometimes a special feature or custom is explained by material from the Chechens or Ossetians, sometimes by cases from the Kabardinians or Kumyks. What emerges is a very colorful general view on Caucasian morals, a psychologizing narrative about the character and mentality of the peoples. For instance, Ol’shevskii indiscriminately states that “robbery is the main profession of the Caucasian mountaineers,”^[20] and that the mountaineer lives in “uneducated and half-wild societies,”^[21] where “law has no power.”^[22] Large sections deal with the relations between the sexes, which Ol’shevskii summarizes in the statement that “the mountaineer’s wife is his slave.”^[23] In conclusion, neither the individual texts of the 1840s nor Ol'shevskii's Svod provided precise texts of customary law suitable for practical use by Russian officials or as manuals at court. Bibikov's program turned out to be too general and too vague, and the personnel – officers of the Russian army as well as representatives of the local nobilities – did not possess the required training for this tremendous task.

LOCAL “CRIME CATALOGUES” OF THE 1860s

After the defeat of Shamil in 1859, the Russian government was confronted with extreme forms of particularism in Daghestan. Inhabited by more than two dozen peoples and ethnic groups with their own languages and cultures, the country had been split up into several feudal principalities and a great number of more or less independent village communities and confederacies, all of which had distinct legal practices. It was Shamil who, at least for a certain time, had imposed a central government on parts of Daghestan and Chechnia. He had turned some confederacies into districts (Ar. sg. nahiya, naibstvo in Russian) led by his military governors (na’ibs), who were responsible only to him. Under Shamil’s rule, shari´a superseded at least several prescriptions of ´adat; furthermore, Shamil had issued his own decrees (nizam) on military, administrative, and legal matters.^[24] Taking into account all these changes, as well as the fact that many specialists of ´adat law had been killed during the Caucasian War, it becomes obvious that the legal situation was in extreme flux and difficult for the Russian authorities to survey.
In 1860, Daghestan was declared an oblast' (territory) of the Russian Empire. The former political entities – mainly the numerous small village confederations of various size and the Khanates, most of which had already suffered a great deal of transformation under Shamil – were gradually dissolved, and the individual regions were bound together in nine districts (okrugi). As for the administration of justice, Russia introduced a dual system: on the one hand, a special oblast’ court was established for the non-Daghestani population (that is, primarily Russians); this court used Russian legislation only. On the other hand, the local population (tuzemtsy) was to retain its ´adat courts in the villages, which were manned by the village elder (Russ. starshina, Arab. ra'is), the qadi and a number of judges to be elected by the community. These village courts were responsible for minor civil law suits in which no more than 100 rubles were in dispute. Crimes were delegated to the District Court headed by the chief of the district, where Daghestani deputies from the villages and Russian administrators would be in charge together. Finally, a “People’s Court” (Dagestanskii Narodnyi Sud) was introduced as court of appeal for the whole indigenous population. Its members were appointed by the highest Russian militaries in Daghestan.^[25] As to the village communities, new regulations clearly defined the duties of the elder (who had formerly been elected for two or three years by the village community but was now appointed for life by the district chief) and of the village assembly (skhod/jama´a, comprising the elder and qadis, as well as representatives of the clans of the community), and restricted their political autonomy.
Officially, customary law was maintained for the indigenous population on all court levels, and the use of Islamic law was restricted to matters of marriage, divorce, and inheritance. However, the aforementioned integration of Islamic qadis in the local courts already makes it clear that Islamic law continued to play a major role in juridical affairs among Daghestani Muslims; we may assume that in the absence of any codes of regulations, it was hard to draw a line between shari´a and ´adat in juridical practice (draft legislation on the administrative and legal practice on community and district level being published only in 1898).^[26]
In this situation, specialists on Islamic law like Tornau and Kazembek proposed to create a net of state-run Islamic courts in the Caucasus that would provide Muslims with the possibility to officially solve all kinds of legal suits according to Islamic law, not just marriage, divorce, and inheritance affairs; this system would include the official establishment of shari´a courts on local or regional levels, as well as a central institution (called "Ijlas") in Tiflis that would consist of a Shafi´i mujtahid and two Sunni Muftis (one Shafi´ı and one Hanafı). Tornau and Kazembek also continued to try to convince the government of the necessity to publish more Islamic law books for use in the administration.^[27] Obviously, their ideas were influenced by the French experience with the creation of a centralized qadi bureaucracy in Algeria.^[28] Yet these projects were not realized, for Aleksandr Bariatinskii, Shamil's subduer and the tsar's viceroy of the Caucasus from 1856 to 1862, wanted to build the local court system on the basis of customary law alone. This meant that if the Russians wanted to check what was going on in the village courts, they had to resume the study and collection of local customary law. This time the officials acknowledged the great degree to which local traditions were heterogeneous. Therefore the Russian ´adat collections of the 1860s was not an attempt at generalization and overall codification, as Bibikov's program had tried to do two decades earlier, but laid emphasis on the peculiarities of each region.
For practical reasons, the first task was to find out how the most current crimes and violations were treated in the various villages of the Daghestani districts. These efforts led to the compilation of what one may call the “crime catalogues.” A typical example for this type is the collection of ´adat from the Gunib district of Central Daghestan.^[29] This district comprised four sub-districts (naibstva, “deputyships”) with over thirty Avar villages. The Russian collection of their ´adat enlists the legal consequences of murder, bodily harm, threat of violence, adultery, and theft, in consecutive paragraphs. Thus, paragraphs 1 to 5 deal with murder, bodily harm, and other items in the villages of Koroda and Gonoda, paragraphs 6 to 10 with the same crimes in two other villages, and so forth. It is striking how divergent the rulings for these simple cases could be. According to the ´adat, in some localities of the Gunib district a murderer had to pay 100 rubles as blood-money (alïm and diya)^[30] to the victim’s kin, plus a fine of 20 rubles to the village community,^[31] while in others he had to give 40 and 36 rubles, respectively,^[32] or two, three, or four bulls.^[33] In some cases, no blood-money is mentioned at all.^[34] And while it was a ubiquitous rule that the murderer had to leave his home community immediately, in several localities the victim's kin was also allowed to pillage and demolish his house, gardens, and fields, and in some villages also the murderer's family had to go into exile.^[35] However, as all this information was obviously based on oral sources, it can be assumed that many of these divergences simply result from the fact that the questions were not standardized.
A similar case is represented in a Russian collection of ´adat from the Avar district (Avarskii okrug), written down in 1865.^[36] It reflects regulations of some 42 villages on and around the high plateau of Khunzakh, the former residence of the Avar Khan.^[37] Again, the material mostly deals with selected topics like murder, rape, and theft, which are presented in a rather un-standardized form. Remarkably, in a few instances the text also gives provisions on the communal self-administration in this region, such as the rights and duties of village functionaries, the misuse of communal property, and the mechanisms of peace-keeping between the clans of a village. In these particular cases, the Russian text resembles indigenous Arabic ´adat texts from Avaria, which may have served as a model.
Catalogues of crimes were also produced for other districts of the Daghestani mountains. One of the most systematic and elaborate Russian collections deals with the ´adat of the Andi district in Western Daghestan.^[38] This comparatively huge and heterogeneous district on both sides of the Andi Koisu river was inhabited by at least eight distinct Daghestani peoples, and was divided into several naibstva by Shamil; before his time, these regions constituted independent village confederacies.^[39] The text contains the ´adat of seven of these naibstva. In each of these local compilations the focus is laid on the treatment of murder, bodily harm, adultery, rape, betrothing, theft, damage of property and pastures, arson, and on the herdsmen's responsibility for the loss of animals. Obviously, these cases constituted the most current and important violations. In comparison to the collection from Gunib district, the cases are discussed in much more detail. The provisions for murder or bodily harm, for instance, also discuss the age, sex, and intent of the perpetrator and victim, as well as the exact dimensions of the wounds and how they can be measured, the payment to the doctor (even the latter's claim to warm clothing and boots, if he comes from another village), and so forth. Much room is given to the peculiarities of the cleansing oath (tahlif in Arabic texts) for each legal case. The text is highly standardized, and is obviously based on a common questionnaire. It seems to constitute a fairly useful source if one wants to compare how certain violations were treated in different regions of Western Daghestan.
Remarkably, the text also reveals how traditional ´adat had already been subject to change. For instance, the Russian ´adat text of the Andi district strengthens the role of the formal court in each village. In pre-colonial times, formal courts played a minor role in Daghestani legal practice; rather, the victim or his kinship carried out retaliation without preceding judgments. In cases of murder, for instance, the heirs of the victim were entitled to kill the murderer whenever they got hold of him. If they did not insist on retaliation, the family of the murderer could offer blood-money, which was regulated by ´adat. Only after both sides came to an agreement the culprit was able to return to his native village and obtain pardon from the victim’s kin. This proceeding was based on the self-help of the victim’s party and on arrangements taken by the two families, and even if some village notables supervised the agreement ceremony, the procedure did not need any formal judge.
The Russian government, however, had a vested interest in restricting blood-revenge for several reasons. First, any self-help use of violence challenged the state’s monopoly on violence. Second, Daghestani blood feuds produced lots of fugitives (abrek in Russian usage), who posed serious problems by indulging in highway robbery. Therefore the administration required that any cases of murder be put under the authority of an official court. This is also reflected in the ´adat of Andi district. In the provisions of most naibstva, the payment of blood-money (which is equivalent to renunciation of blood-revenge) was described as the natural consequence of all murder cases, without mentioning the right to kill in retaliation. The text of one naibstvo went even further and explicitly prohibited the killing of the blood-enemy.^[40] In contrast to all pre-Russian ´adat texts in the Arabic language, the Andi ´adat did not require the exile of the murderer; he could simply stay in his house until peace was established between the two families.^[41] Seemingly, it was the judges of Andi who guaranteed his life, for their verdict also regulated the delivery of the blood-money.^[42] And last but not least, while according to all traditional ´adat texts of Daghestan a house owner was entitled to kill a thief whom he caught in the very act, almost all of the naibstva ´adat emphasized that such a killing was to be treated as equivalent to murder.^[43]
The most striking change, however, is that according to the Russian text, certain violations were punished by arrest in the gauptvakht (the German word Hauptwacht, “main guardhouse”) of the village of Botlikh, the administrative center of the Andi district. Alien to traditional Daghestani ´adat, imprisonment as a kind of punishment was introduced first by Imam Shamil in his jihad state.^[44] Thus here again, the Russians continued Shamil's practice. The Russian ´adat text of Andi mentions imprisonment for cases of rape, which had formerly required exile.^[45] In other parts of the Andi district, if exile was inevitable to protect the culprit’s life (e.g., in cases of adultery), the latter would be sent to Siberia, which often in Russia simply stood for exile in general, regardless of whether the actual place of exile was Northern Russia or Siberia.^[46]
In some instances the Russian collections explicitly note where they digress from traditional custom, thus showing that they reflect something else than just the traditional, pre-colonial state of affairs. This concerns above all the custom of betrothal (svatovstvo in Russian). In traditional Daghestani society, if a bridegroom obtained the agreement of a girl's guardian on the marriage, he had to give certain presents to the guardian, which would later constitute the kalym (dowry) of the bride. If, however, the girl or her guardian did not keep their word and the marriage did not take place, they had to return the presents and pay a certain sum of money to the suitor. If it was the bridegroom who abandoned the plan, the girl would be allowed to keep the presents. Legal suits on these presents must have been most frequent; they already figured prominently in the ´adat collections of the 1840s. These presents could be very expensive, and young men had to work hard to earn the money for them. For this reason, engagements could last many months and even years. Obviously in order to do away with this problem, most of the ´adat texts from the Andi district declared that “from the day of the fixation of these ´adat, betrothal is altogether abandoned” in their respective communities.^[47]
Each of the texts discussed so far is a mere compilation of ´adat rules from different localities of a certain district. We may call this additive representation; it was obviously chosen for practical use at district courts, for it showed how important legal cases had to be treated in different sub-districts. These sub-districts had once constituted more or less independent communities or village confederacies; just as these units were now put together to form the new colonial administrative unit of district (okrug), the Russian collections of district ´adat are nothing but a compilation of the ´adat of individual naibstvo. However, this additive fashion of representation was highly repetitive, for it reiterates the whole list of crimes for each sub-district, notwithstanding the fact that several individual rulings were valid not only in one, but in several naibstva.
An alternative to the additive representation of ´adat in the Russian collections can be labeled the integrative approach; it was used to depict ´adat of units that had previously not been on an equal political level, but in a vertical relation. This was possible in the district of Dargo (Darginskii okrug), which had formerly constituted a “union of confederacies.” Consisting of seven confederacies, the Union of Dargo was presided by one of them, the confederacy of the village of Akusha. Nevertheless, the member confederacies were not only independent in their interior affairs, but also in much of their relations to outside parties. The anonymous author of the Russian compilation of the Dargi ´adat chose to compare all individual ´adat sets of the seven confederacies in order to find out which provisions were current in all of them. These he separated as the “common ´adat” of the whole Union, and juxtaposed them to ´adat specific to only one of the seven member units. The “special” paragraphs of the member units were meant to supplement the “general” provisions of the Union, to which they were linked by cross-references in the text.^[48] This method makes plain the distinct features of each unit, and it allows us to assess the possible variations that were tolerated within the overall Union.
However, we do not know whether the Union of Akusha-Dargo actually possessed such a common corpus of ´adat, be it written or oral. Therefore the systematic construction of a “common” ´adat corpus of the whole Union seems to be artificial. This criticism notwithstanding, the portrayal of the ´adat of Akusha-Dargo and its member confederacies is very valuable. In addition to the most current legal cases, it also presents many details on social relations and economic regulations in the respective communities, provides information on the communal functionaries, and explains the indigenous legal terminology. Another merit of this text is its conscious separation of those matters that were regulated according to Islamic law.^[49]
Yet Russian officials still barely realized that Daghestani communities themselves laid down their ´adat in documents of communal agreements, and that these Arabic texts may have been useful for a systematic description of customary law.^[50] To judge from the published sources, only in two instances did imperial Russian officers translate Arabic sources in order to obtain practical knowledge: these are the ´adat of the confederacies (sub-districts) of Dido and Ukhnadal’ from Bezhta district in mountainous Daghestan. In contrast to pure crime catalogues, these two Russian texts deal with the whole complex of village organization, and they also reveal the structure of a traditional ´adat text that has grown over a certain period of time.^[51] Only in one case a Russian high-ranking military and hobby ethnographer, General Aleksandr V. Komarov (1823-1901), produced a systematic and comprehensive ´adat law book on the basis of an Arabic ´adat sketch, the materials of which he simply presented in a new arrangement according to European legal concepts. However, Komarov's “Collection of ´Adat from the Principality of the Shamkhal and the Khanate of Mekhtula” is again a mixture of legal and ethnographical information, without reference to the communities and their procedures of law finding, and it does not seem to have made its way into courthouses.^[52]

ADAT AS LIVING FOSSILS: MAKSIM M. KOVALEVSKII (1880s)

The fruits of all previous Russian efforts to collect North Caucasian customary law were first harvested by Maksim M. Kovalevskii (1851-1916). After he had written his first major Russian works on “Communal Landed Property” (1879) and on the “Historical-Comparative Method in Jurisprudence” (1880),^[53] Kovalevskii turned to the North Caucasus, where he carried out some fieldwork on the connection between kinship structures and customary law.^[54] Especially the Ossetian, but also the Daghestani, material allowed him to corroborate his theories on the historical development of law.
Kovalevskii was an ardent adherent to the evolutionist theory in legal history and anthropology.^[55] One of the most influential works in this field was Ancient Law (1861) by Henry Summer Maine, who is widely regarded as the father of legal anthropology. Maine was convinced that the most primitive form of society was the patriarchal family. He argued that the most ancient form of law was the one set by a patriarch or a king; this form developed into customary law, and customary law gave rise to the great codifications of law in classical antiquity.^[56] This theory is reflected in Kovalevskii's work Sovremennyi obychai i drevnii zakon (“Contemporary Custom and Ancient Law”), published in 1886 and later translated into French.^[57] In this book Kovalevskii investigated the customary law of the Ossetians in comparative perspective. As the Ossetians are counted among the Aryans, Kovalevskii was convinced that they had preserved an old state of law that had once been common to all Aryan peoples. He compared their contemporary legal institutions with law monuments of the German, Irish, and other European and Oriental peoples of the Middle Ages. The outcome is a firework of cross-cultural references, achieved by an eclectic selection of examples, and based on the still limited historical evidence of his day.
While this approach is clearly linked to a racial concept, in other works Kovalevskii made clear that similarities between the legal systems of different peoples or tribes do not necessarily reflect a common philological origin (filologicheskoe srodstvo), but occur when peoples live under similar conditions: “by passing through common states of development, the nationalities (narodnosti) work out similar legal norms independently of each other.”^[58]
This idea is central to one of Kovalevskii’s later works, Zakon i obychai na Kavkaze (Law and Custom in the Caucasus, 1890), in which he turned to other, non-Aryan, peoples of the North Caucasus.^[59] Its first volume is an historical overview of law development in the North Caucasus in general with special reference to the impact of foreign law systems, especially those of the Iranians, Byzantines, Armenians, and Georgians, and invaders like the Khazars, Huns, Arabs, Tatars, and Mongols, and last but not least, the Russians.^[60] The second volume of Zakon i obychai deals with the mountaineers of Mingrelia and Georgia (part I) and Daghestan (part II). According to Kovalevskii, although Ossetians, Kabardinians, Chechens, Svanets, and Daghestanis differ in their races, languages, and religions, they are all characterized by a common kinship organization (rodovaia organizatsiia); for this reason, the customary law of all mountaineers forms “something whole and unified.”^[61]
Kovalevskii's work on Daghestani customary law in part two of Zakon i obychai is a serious and valuable analysis of the development and functioning of ´adat. Based on the Russian ´adat compilations of the 1840s and 1860s as well as on his own observations,^[62] Kovalevskii analyzed the relationship between ´adat and shari´a, the kinship structure of Daghestan, and many aspects of family law, inheritance law, criminal law, and capital crimes.^[63] His idea was to distinguish between the legal provisions of old origin and others that had been introduced in later times by external influences and certain historical events. This distinction is based on two arguments.
First, he assumed an ongoing process of dissolution of kinship organization in Daghestan toward communal organization. Accordingly, those ´adat provisions that display kinship interests should be referred to an older layer, while provisions displaying communal interests are more recent. Among the older regulations he counted features such as unrestricted blood-revenge, the system of co-jurors before court (that is, the rule that a suspect had to produce a certain number of relatives who swore that the accused did not commit the deed in question), and the exclusion of women from inheritance.^[64] Furthermore, Kovalevskii presupposed that in former times, kinship groups had been economic units (imushchestvennye soiuzy), and that settlements originally consisted of one kinship group only.^[65] However, already in his time no Daghestani village was inhabited by merely one clan or lineage (tukhum). According to Kovalevskii, when several clans joined to constitute a village, the new community developed its administrative structure according to the model of kinship organization, with elected elders and assemblies.^[66] In this respect, Kovalevskii regarded the village organization as the heir of kinship organization.^[67] In the course of time neighborhood relations superseded blood relations; thus the right to pasture or to cut wood was no more determined by affiliation to the individual clans, but by membership of the overall village community.^[68]
Kovalevskii's second yardstick for a chronology of ´adat development was his assumption of the increasing interference of Islamic law. He observed that some domains of Daghestani legal practice, such as marriage, divorce, and inheritance, were almost totally regulated by shari´a. Furthermore, Islamic elements and notions had also penetrated and changed many legal institutions of customary origin. For instance, several collections of ´adat ignore the notion of murder being committed without intent or by carelessness, and prescribe the same consequences (retaliation or blood-money, combined with fines and givings) for any case of killing, be it deliberate or not. Similarly, attempted violations and incitement to crime are often not reckoned as punishable acts, for only actual damage was taken into account, and had to be compensated without regard to the wrongdoer’s motivation.^[69] In Kovalevskii’s mind, these were the most ancient rules. In other regions, however, ´adat provisions distinguish between deliberate murder and manslaughter or killing by accident, and display a graduation in blood-money and fines. Kovalevskii regards these qualifications as shari´a interferences, for Islamic law distinguishes between killing with or without intent (´amd) and even knows the category of quasi-deliberate intent (shibh al-´amd).^[70]
Unfortunately, it is hard to prove whether these qualifications had actually been borrowed from Islamic law or not. Kovalevskii knew only one ´adat text predating the shari´a and jihad movement under the three Imams (1829-1859). This was the so-called “Codex Rustam Khan” from Kaitak, of which Kovalevskii had two Russian translations at his disposal.^[71] As Rustam Khan of Kaitak ruled in the first third of the 17th century, Kovalevskii believed it represented Daghestani customary law “in its purest form.”^[72] Yet Kovalevskii conceded that even Rustam Khan's law already contains some deviations from the alleged original form of ´adat law. In its provisions on murder, for instance, it claims that the heirs are entitled to perform blood-revenge only against the murderer himself, not against his relatives. Furthermore, the ´adat of Rustam Khan also acknowledge killing in self-defence as a lawful act. Both qualifications can also be found in Islamic law.^[73] Obviously, the ´adat of Rustam Khan do not shed much light on the historical development of customary law and shari´a in Daghestan.
By checking several Russian ´adat collections of the 19th century in his search for possible Islamic interferences, Kovalevskii came to the conclusion that especially the Avar regions around the Khanate of Khunzakh, but also the Khanate of Kazikumukh and the Dargi regions, had incorporated Islamic elements into their customary law. However, he made no efforts to corroborate his argument by investigating the historical background of these Daghestani regions.^[74] He also gave no explanation why the shari´a should have been influential in some Khanates, but not in others, such as the reign of the Shamkhal of Tarki. Similarly, Kovalevskii detected the strong influence of Islamic law in some village confederations (as the aforementioned Dargin confederacy of Akusha, Central Daghestan), but not in others (e.g., the former confederacies of the Andi Koisu region in West Daghestan). It is obvious that Kovalevskii's understanding of the historical development of ´adat is based more on logical inductions than on factual evidence, and therefore should be regarded as ideal types, not as historical reality.
In view of the progressing decomposition of kinship organization and the growing restrictions of the tukhum's collective legal responsibility, Kovalevskii observed an overall development of customary law toward Islamic law, with its mitigating effects on blood-revenge and its concept of individual responsibility. Consequently, Kovalevskii suggests regarding shari´a not as opposed to customary law, but as its “latest step.”^[75] Disregarding all religious and political factors that may have had an impact on the change of the traditional law system, Kovalevskii never seems to doubt the progressive and unidirectional development of law in history.
All shortcomings notwithstanding, Kovalevskii's work represents the first coherent interpretation of Daghestani customary law as a distinct legal system in relation to Islamic law. By consulting a French translation of the work Minhaj al-talibin of the Syrian Shafi´i scholar al-Nawawi (d. 1278),^[76] Kovalevskii was also the first to compare provisions of Daghestani ´adat with those of Islamic law. Even if most of his conclusions deserve to be checked, his work presents the most coherent and extensive theoretical analysis of North Caucasian ´adat to date.
Kovalevskii also touched upon the question of how the Russian state should handle Daghestani customary law. In his opinion the government should not hesitate to do away with customary law wherever it blocks the way of cultural progress:

“By leading an open fight against the relics of ancient wildness and kinship-based lynch-law (samosud), by persecuting the killing of new-born girls in Svanetia and the unlimited kinship-based blood-revenge in Daghestan, the Russian government fulfils the cultural tasks that history has conferred upon its shoulders much better than by bowing to customs that insult our moral sentiments, and that are based on nothing but their old age.”^[77]

Kovalevskii states that since the beginning of the Russian conquest of the North Caucasus, the Russian government has always tried to back local customary law against Islamic law. This was reasonable as long as Russia’s enemies, the Daghestanis and Chechens who united under Shamil, adhered to the shari´a. However, customary law had grave disadvantages, for its endless cases of blood-revenge and its arbitrary justice by self-help “paralyze the work of the government.” In Kovalevskii's view, it is time to acknowledge that the shari´a can soften the crudeness of customary law – by admitting women to inheritance, by forbidding the practice of ishkil (self-help confiscation),^[78] and above all by smoothing the legal consequences of non-intentional killings. Therefore he comes to the surprising conclusion that it would be perfectly in line with the Russian “enlightening mission” (prosvetitel'skaia missiia) in the Caucasus to allow the local courts to judge criminal cases according to the shari´a.^[79]
Kovalevskii defines his own task as to unveil the origins of law, and to show that customary law must not be treated as the people’s unalterable and sacrosanct opinion of the truth, but as the result of a long historical process, and as being subject to new changes. Social renewal, he concludes, can only be effected by fighting obsolete and dangerous customs. For this reason, Kovalevskii demands “more freedom for the Russian administration and courts” in order to bring about social progress in Daghestan.^[80] In the light of these statements, one may ask whether Kovalevskii's concept of progress differs much from that of the colonial officers of the 1840s, who characterized the population of the Caucasus as “half wild” and presupposed that they were in need of benevolent European guidance. In fact, Kovalevskii clearly bolsters the Russian notion of mission civilisatrice by providing it with a scientific explanation.

CONCLUSION

The ´adat collections produced by Russian officers and ethnographers reveal the following characteristic features: (1) they often disregard the differences between custom and law, and deviate into ethnographic and historical descriptions; (2) they reduce the complexity of ´adat by focusing on some spheres of civil and criminal law only; (3) they make explicit what is only implicitly, if at all, mentioned in traditional (Arabic) ´adat texts, where many issues are simply taken for granted; (4) they make efforts at systematization and codification of legal material; and (5) they tend to blur the border between customary law and other law systems. Furthermore, (6) the Russian ´adat collections lack any information on the methods used, as well as on sources.
We do not know which individual collections were actually used in the local ´adat courts; this question could probably be answered only by a study of archival materials. What can already be stated is that most of the materials were published only in the 1880s, or even in the 20th century, and not for administrative but for ethnographic purposes. The overall project of codifying Daghestani (or even North Caucasian) customary law for practical purposes must be regarded as a failure.
There is still another point worth mentioning. The Russian campaigns of the 1840s and 1860s were, it seems, almost exclusively based on oral sources. Russian ethnographers largely neglected the fact that the Daghestani villages and confederations possessed their own ´adat books in the Arabic language. This had serious consequences. Recent research has shown that the indigenous Daghestani ´adat booklets (daftars) in the Arabic language (which have come down to us especially from the Avar region) are not merely “crime catalogues” and contain much more than just cases of murder, theft, and rape. Rather, they also deal with subjects like the liabilities of the community’s elders and policemen, the regulations concerning the common defence of the community against outsiders, the agricultural calendar, and the community’s use of its resources.^[81] In short, from these local documents Daghestani ´adat emerges as the legal basis of communal self-organization.^[82] Russian ´adat collections, in contrast, concentrate on a rather limited range of criminal and civil cases and do not mention any of these communal affairs. This does not come as a surprise, for under Russian rule communal autonomy was largely restricted, and political, economic, and military affairs were decided not by the village community but by the Russian administration. Therefore Russian ´adat texts were generally confined to the rather limited number of cases that were still handled at the local courts under Russian surveillance. By omitting the regulations on communal self-organization, the Russian officers and ethnographers also disregarded the fact that ´adat law was decided upon and enacted by the Daghestani community itself, that is, by the communal assembly and its elected elders. In other words, the Russian collections disregard the fact that ´adat was communal law, with the community as its origin and guarantor.
By disconnecting ´adat from the community, Russian ethnographers transformed the communal law, the law of the community, into customary law, that is, into a set of regulations that allegedly had their origin in the ancient past, not in the living community. It was this process of disconnection that ultimately subjugated Daghestani ´adat law to the manipulative efforts of the colonial power. Instead of recognizing ´adat as an expression of dynamic communal self-organization, it was treated as raw material that could be fixed and remodeled in codices or crime catalogues according to Russian necessities.
All transformations notwithstanding, the colonial authorities believed that the maintenance of ´adat law in the villages would be necessary in opposition to Islamic law, which in turn had been promoted by the great North Caucasian insurgencies under Shamil and other Imams. Interestingly, it was a renowned specialist on ´adat law, the Russian ethnographer Kovalevskii, who understood that the shari´a offered even more possibilities for “civilizing” interventions than the traditional ´adat. His insights, like similar suggestions made previously by leading Russian specialists in Islamic law like Tornau and Kazembek, were not realized by the Russian government; yet they were remarkable in a time when Islam was still regarded as Russia's main enemy in the North Caucasus.