Blood-feud in Anthropology of Law
How to deal with blood-feud in contemporary world from a legal anthropology point of view? Probably the best way to start with is to see how the anthropological discourse, has used the idea of primitive man, due to response to concerns of modern world. Once Adam Kuper summarized:
“The idea of primitive society served imperialist and nationalists, anarchists and Marxists, and now it is proving helpful to the Green movements. Any ideological current could use primitive society as a foil because primitive society is the mirror image of modern society or, rather primitive society inverts some strategically significant features that are attributed to modern society. Both terms of opposition are equally imaginary, but they sustain each other. In turns out that the idea of primitive society is perhaps even more potent when projected against an image of the future, a future in which, so we told, we will inhabit a global village, set in wasteland”. [Kuper, 223]
So, even though the word primitive is disappeared from the anthropological literature since 60s of XX century that does not mean that primitivism is not yet part of anthropological scholarship. Probably in all anthropological literature (in and out of home) blood-feud is seen as an attribute of primitive man. Looking from this view, anthropological concerns were to see if blood-feud is or not part of the sphere of law. This question of law is related to the capacity of society to have control within society. For Laswell and few prominent anthropologists of his time, such as Malinwoski the blood-feud is an expression of primitive law (Laswell, 1931). But on the other side a new tradition on anthropology of law, and still dominant in our day, inclined in a realistic tradition of law, surprisingly, put the blood-feud as antithesis of the law. The surprise is based on the fact that these authors are at the same time, pupils of realistic view on law, and also the creators of the legal pluralistic view on law.
To Adamson Hoebel there is no solution that derives from blood-feud, since the process of counter-killings do not stop in one side. In this view, there is no any social mechanism mutually recognized by parts in conflict as coercive sanction against the killer and his group. We should recall that in Hoebel perspective the right way to identify a legal norm is through the existence or not of physical sanction against that persona who transgress this norm. Second criteria is a procedure and concrete capacity of institution foreseen to execute this sanction. In case of lack of physical sanction there was no possible way to speak about the presence of law. Another prominent author Bohannan (1963, p. 290) calls feud “a faulty jural mechanism” because it does not lead to a final settlement—to peace and rectitude. Radcliffe-Brown, on the other hand, refuses to regard feud as law, not because of its functional aspect, but because blood-feud lacks “the exercise of recognized authority in settling disputes” (see also, p. 154; Evans-Pritchard 1940,. Posipisil, 1971).
In his work Leopold Pospisil, after revising the most prominent theoretical views of scholarship on law, he find at blood-feud as antithesis of law. To grasp the meaning of this theoretical stand of Pospisil, lets summarize the theory of Pospisl on law. Pospisil have suggested four criteria how to define the law in any social milieu 1. Law is attribute and production of legal authority. 2. This law has attribute the intention of universality 3. Obligatio; 4. Sanction. (Pospisil 1971: 39-96).
Taking the four criterias of Pospisil how to define the law and looking to kanun on the nature of blood-feud. Regarding legal authority, we can say that blood-feud is a legal institution derived from customary law that obliged people to revenge because the member of the other social group had already committed an act that is considered a legitimate cause of the blood feud. The legal authority in this case is embedded in the legal authority of the creator/s of the whole legal system called kanun, or of specific law on blood-feud (Bardhoshi 2015). In literature referring to Albania the most known kanun is called Kanuni i Lek Dukagjinit . Beside this ‘version ‘ of kanun, there are many other local versions of Kanun and names that refer to this legal traditions (Bardhoshi 2015). There also the memory of the people who change and judge following the ideal way of doings so. There are also people who said that this law is just because it represent what the ancestors or merely the God commands as the right way to life in and so on. And in the end, the source of legal authority is also a common sense, which derives from the logic that everyone who coniseder his/her self human being should behave like that. After all, all this perspectives fulfill the criteria of legal authority in emic perspective.
Regarding the second criteria used by Pospisil, the intention for universal application of rules of blood-feud, there is many legal norms that have as function to explain the general logic of blood-feud as social relations, and there is also enormous norms that regulates specific cases. So no need to go further since, most of legal norms that regulate blood-feud have the intention to be universal in full sense given by Pospisil. Speaking on obligation, the third attributes of law according to Pospisil, we can say that the obligatio to revenge and to accept the revenge as legitimate act, is embedded in the meaning of restoring what is taken from you. The nature of obligatio in case of blood-feud is universally based both on principle of reciprocity and equality. Therefore, in local terms blood-taking is also the sanction and the mechanism to render justice. Sometimes blood-feud works out as the one of the alternatives of sanctions, and sometimes as the ultimate way of rendering justice. But in most of the cases the blood-feud can be replaced with the power to forgive or to abuse with the legitimate right to revenge. The ways how the forgiveness is articulated depends, and it will part of this paper to explain more the legal terms and ethics of forgiveness as part of local meaning of justice. Regarding the capacity to abuse with the power to revenge, there are a set of rules actually sanctions against those who do not follow the rules of blood-feuding properly (e.g ostracism, killing collectively, avoidance ect.).
Now, how can we speak about the blood-feud as sanction since the right to revenge seems to be articulated in a private way? This view, so looking the blood-feud as private reaction should be revised, because the right to revenge is not a legal norm settled in private way. Also the social pressure to make the avenge part to revenge is not an issue of privacy and so on. The existence of sanction against the people who did no follow the rules of blood-taking in proper way is also an evidence to speak about blood-feud both as law and as sanction accepted publically. Therefore, in my view blood-feud, is nor private sanction and neither private issue. To make this distinction is very important because we know the fact by classing blood-feud as an private issue, blood-feud is also consider as something out sphere of law.
So, in my view, putting blood-feud outside the sphere of law is one of the way how modern legal anthropology decided to avoid speaking about the blood-feud as a central concern of anthropology of law. Another way to speak about blood-feud is to classify it as part of legal institution of primitive society. The fact that legal anthropology is not having proper research on blood-feud in hypermodern world is not a prove to speak about the absence of blood-feud. The existence of blood-feud in many parts of the world is not necessarily social production of any traditional customary law, it is not a social production of scarcity of economic resources (cf. Black-Michaud, 1975), but it is above all a social production of a lack of moral authority of state law, or/and state law capacity to monopolized all pores of the justice and so on. Now, let’s go back to the issue of blood-feud, in anthropological and ethnological studies done in post-socialist Albania.
Reinvention of Man of Kanun, Modern State, and Modernity
In both national ethnology and international anthropology blood-feud on Albania society, is seen as an integral part of customary law called kanun. For most Albanian ethnologist who worked at Institute of Folk Culture (Instituti i Kulturës Popullore) the real Kanun is not any more in action, it has vanished in time and it blemished by change. The time when the Kanun was definitely was replaced by state law, was After WWII. Thus, it is pointless to speak about real blood-feud in today’s Albania. The image of ‚real kanun‘, seems to be deeply rooted in the essentialist ground of XIX and beginning of XX century Indo-European studies from where Albanian Studies emerged as a branch. On the other hand, most international anthropological scholarship on post-socialist Albania focusing on the issue seems to be dominated by the theoretical premises of ‘invention or re-invention of tradition’. By demystifying the image Albanian social science and ethnology during communism had created for Kanun and inspired by a realistic ethnography and deconstructivism, many scholars who came from out Albania [see cf. Schwander-Sievers, 1999, Pichler, 1999, Krasztev, 2000, Voell, 2003], build a new profile for the ‘man of Kanun’ as a pragmatic persona, leaded by pragmatics needs and ideals free.
Probably, the work of Stephanie Schwander-Sievers (1999) exemplifies best a sort of schizoid profile of the man of Kanun. In this view, man of kanun is portrayed at the same time as pragmatic and violent, violence that is derivation of binary logic. In this view, man of kanun operate based on two main category, “friend” and “foe” [Schwander-Sievers 1999, 2001). No need to go in detail to prove that this image of black and white logic of man of kanun, sort of childish logic, was very present in anthropological literature at the beginning of XX century. For instance as far as I recall it was Ernesto Cozzi who once said that he has discovered that people in Malcia e Madhe believe in diets of good and bad and so on . This approach on man of kanun is embraced by many scholars who dealt with post-socialist Albania or who are interested in issue of blood-feud in contemporary world. The data generated to support such claims originate from field research carried out in a context of «total crises after four decades of totalitarianism, highlighted by turbulent economic reforms, political instability, hemorrhagic emigration and perpetual uncertainties and security that are not endemic only to post-socialist Albanian but also elsewhere. It should be underlined as a shortcoming to these studies that the authors loosely pay attention to the post socialist context while designing the profile of the so-called kanun man.
It can be suggested and probably fruitful to start our reflection on the co-relation between blood-feud, society, knowledge production and state, with the theoretical premise that regardless the political or ideological organization the state, modern societies have continuously used politics of classification in understanding culture within or outside the boundaries of the state. Part and parcel of this politics seems to the production or invention of an inferior society; a mechanism instrumental to legitimate the existence of modern state as the main actor of social change. According to the logic of modern state, both society and culture are subject of continues making and unmaking and the sole authority and responsible entity to carry out such process is the state [The continues classification process of the society by the modern state can be best grasped by the concept of liminalisation. The notion of liminalisation of society referees to all those state led policies, both in discursive and practical level aiming to position a society into a betwixt and between situation. Within this contour, the presentism of a given society is qualified as subject of re-making, purification and change in the name of an ideally totally new culture. The process of purification itself calls society towards continues sacrifice. People who life in the present should sacrifice their life to build the new radiant future. The State produces and reproduces the unpurified present as well as the need for new sacrifices. In totalitarian states the process of liminalisation of society is more overt and evident [Bardhoshi, 2015: 419-482]. In post-totalitarian state, an old and new sort of purifications take place. The purifications of society now is dervisified both because of failed state, and because of ‘ideology of diversity’ that become a central on in contemporary world. For instance, the process of Europiansation illustrate it. There is a case when a failed state, classified also the society as failed one, and the process of new society and new world take place. Even though in condition of failed state and sometimes even in context totally collapse of state, state remain the main social field when the society and man has to be measured.
However, adopting such perspective and exploring modern societies through the theory of liminalisation should not lead us to the idea that such concept can explain everything [cf. Horvath 2013, Thomassen, 2014]. The theory of liminalisation helps to grasp sociologically and inquire on the logic of modern state and especially on the way how local cultures are instrumentualised by the state. Such, it helps us to see how social sciences functional to and articulate by bringing forward the process. In our case, it is quite important to see how both national ethnology and history of law are used as instrument of liminalisation.
I purpose here, that the anthropological discourse on kanun and particularly on blood-feud, both form in and out of Albania are not only grounded on ‘legal orientalism’, or let say ‘legal balkanism’ but first of all on ‚legal primitivism ‘. Legal primitivism itself is an outcome of Indo-European studies and scholarship that searched to trace the origin customary laws in Europe [see Touri 2015].. While the Orient, the Balkans, Albania are spatial coordinates where time (history) is in function of geography, through the categories of legal primitivism, geography is at service to history.
The process of legal primitivism invention is an integral part of the invention of primitive society, materialized both inside and outside of the social reality [Fitzpatrick, 1992., Kuper, 2005]. In terms and contexts set by the Indo-European scholarship, the invention of „the self in the past and in the presence of the modern state. However, the critical view build under the lenses of unmasking orientalism or balkanism in such studies are all exposed in redundantly falling into defensive position [e.g. Doja, 2011]. In my view, the quasi totalistic approach offered by primitivism, orientalism or balkanism should be tested by a specific set of research on different realms of society and culture including law, language, material culture, music etc.
It is clear that Kanun in general and blood-feud in particular is used as signifier to mark a difference between Albanian and Ottoman heritage, but it has been also as signifier of differences and commonalties between Albania and other neighbors and Western Europe and so on. More over kanun was seen as the most archaic, sometimes as the most primitive Indo-European law still alive [See Hann, 2007, 1967; Nopcha, 2013, Durham, 1910, Thallozy, 2008, Palaj, 1930, Gjeçovi, 1933]. Blood-feud, tribal organization, and so on, are used as concrete examples. Albanian society was often taken as illustrative and instructive to show the primitiveness in Europe. For instance, Marcel Mauss, while giving a lecture in front of philosophers in London, while promoting his approach to sociology and anthropology, stayed the following: „Les Albanais sont dans un stade de civilisation toujours très primitive, plus primitive certes que les Indo-Européens ou moment de le entrée dans l’histoire….” [Mauss 1920, 16]. The image of Albania as tribal society is dominant in most authoritative anthropological works published in English after WWII. [e. g. Lowie, 1947: 506., Coon, 1950: Wittaker, 1968: 253-293].
Ethnology in Albania on Kanun and Blood-Feud
Ethnological research in Albania was officially institutionalized 1947. This sort of ethnology done in context of dictatorial situation is dominated by ethics of romanticism and etatism. The ethics of etatism are clearly related to the totalitarian state that classified ‘traditional culture’ as inferior comparing to the state project of socialist culture [Bardhoshi 2014]. One of the first topics of ethnographic research was on customary law and the project was headed by father founding of ethnographic research in communist Albania Rrok Zojzi [Bardhoshi 2009, 2014]. However, no contribution by ethnologists in Communist Albania (1944-1990) came out during and after socialism directly related to blood-feud. The only contribution on blood-feud in post-socialist context is attributable to a sociologist that can be considered as an extension of the dominant discourse on subject already build by Edith Durham’s work and Ismail Kadare novel Broken April [Tarifa, 2008]. For instance, in this work blood-feud is described without reference to reconciliation process and the arguments are built on an ill understanding of society’s social structure.
The lack of publications by Albanian ethnologists who worked mainly in Institute of Folk Culture on the question of blood-feud could be considered as an outcome of what can be called a culture of silence, a social product of both nationalist and communist perspective, state centric approach on society, very dominant in Albanian ethological discourse. In recalling the conversation with my elderly colleagues at former Institute of Folk Culture, I consider their silence as a product of post-socialist ‚total crises‘. It was probably their way how they thought to protect the dignity of the country after the collapse of communism when the blood-feud phenomena started dominating the public sphere. They often would theoretically de-legitimatize it by arguing that there is no „real blood-feud” because as phenomena was part of past times, a Middle Age morality, or a sign of ancient time.
Many senior Albanian ethnologists published a number of monographies in post-socialism and in all of them the blood-feud as a contemporary research issue is avoided systematically [cf. Gjergji, 2001, Ulqini, 1995, 2003, Doçi 2003, Tirta, 2004]. All these publications refer to the image of how the kanun was in the past, underline its values to social and ethnic cohesion. Legal primitivism is not only the content of these works but also its very structure. The reader is first introduced to the Ilyrian origin, or to an anonymous ancient time of kanun, than the journey continues in time to see the core of national culture evolving in time.
In comparing the silence of national ethnology on blood-feud during and after communism, the can argue that former was a social product of a define relation between state and knowledge, whereas the later seems to be a continuity of the same ethics of speaking on national culture, but now under the roof of national ideology ethics in times of total crises. The theoretical definition of ethnology as a science that deals with past, has enabled Albanian ethnologists not only in classifying the “real” from the “unreal” but also to escape from the responsibility to deal with blood-feud as a synchronic phenomenon.
On the other side, the Albanian post-socialist scholarship on customary law was enriched by the publication several books that described different local version of kanun. All these publication result from data collection and codification of variants of kanun that were done during communism and most of them derive from the Sector of Ethnography projects aiming the archiving of traditional culture. [Ilia, 1993, Meçi, 1996, 2002, Goci, 2010, Hoxha, 2014, see also Elezi, 2006, 1993 Martini, 2003]. Therefore, the culture of archiving can also be seen as part of silence. The project of Albanian Academy of Science to publish the Customary law of Albania (1989) did stopped but some of the finding were published after wards. It should be noted that all these publications follow the codification model applied by Shtefen Gjeçovi [Gjeçovi, 1933]. All this publications, including here the publications in Albanian of many albanological studies done by foreign scholars at the end of the XIX and beginning of XX century speaks on the tendency of re-indo-europianisation of Albania culture.
Post-Socialist Anthropology on Kanun and Blood-Feud
During the communist totalitarian state foreign scholars were not permeated to conduct ethnographic research on kanun and blood-feud and also in generally speaking Albania was the only place in Eastern Europe that did not permeated foreign anthropologist to conduct ethnographic research in Albania. Probably the only ethnographic works carried out during the period of communism in Albania are attributable to the Russian ethnographer Julia Ivanova and the social anthropologist Berit Backer. In case of Ivanova, her work was done during 50s of XX century [see at Bardhoshi, 2014]. But the work of Ivanova and Backer has no any valence related to the issue of kanun and blood-feud during communism. So, those authors who tried to have permission to come in Albania for doing research on blood-feud have been not permeated by the Albanian state [see Backer, 2003, Boehn, 1984]. On other side, the author of ‚feuding society‘ Black-Michaut , took Albania as instructive case. In cases when authors [i.e. Black-Michaut, 1975] referred to Albanian as a ‘blood-feuding society’ the data derived from empirical reality of end of XIX century to the beginning XX century. However, parallel to the „new articulation “of native ethnology in post-socialist context, Albania and blood-feud were rediscovered once again by foreign anthropologists. The topics explored international anthropologists vary. But the questions of blood-feud, sworn virgins, and tribal organization preoccupied not only anthropologists but it captivated also the imagination of journalists and filmmakers. One of the main questions that anthropologists had to deal with it, was to understand that what happened to blood-feud and traditional culture in general during communism in Albania and why it emerged after it fell.
Regarding blood-feud, some authors argued that blood-feud was ‘terminated‘ by the communist state [Schwander-Sievers: 2003: 97-120; Krasztev 2002: 2000]. In their perspective, the collapse of the totalitarian state created a vacuum that was bridged by a legitimate enactment of tradition that filled the gap between state and society every time there was a crisis. Thus, according to Schwander-Sievers, whose work has been very influential on issue of blood-feud in time of crises in Albania, is said:
„The last major internal Albanian Crisis occur when opposition leader Azem Hajdari, a former leader of the student protests, which eventually led to breakdown of the one-party regime, and loyal follower to Sali Berisha, was killed in September 1998. The assassination was related to the North Albanian ‚tradition‘ of customary revenge killing as well as to contraband activities in the Northern border area which Hajdari and his personal enemy Gafur Mazreku, a member of parliament of the ruling ‚Socialist Party‘, came (Krasztev 1999:3). This particular region became infamous fort its customary ‚traditions‘ of feuding were terminated during communism. Subsequently, the so-called ‚Democratic Party” boycotted parliament accusing the ruling party of endangering Albanian civilization and integrity, thereby reproducing a disastrous political fragmentation in Albanian politics. Paradoxically, it was the 1999 Kosovo War with approximately half a million of Kosovar-Albanian refugees fleeing into Albania which finally led to integrated governmental politics“ (Schwander-Sievers: 2003: 99)“.
At first sight this story looks as piece of realistic ethnography that grasps the intensity and plurality of violence in situation of a failed state. But the concrete story told here does not go exactly like that. Indeed, Hajdari was shoot by Mazreku in the Parliament of 1997. But Hajdari did recover, and he declared that he has no personal conflict with Mazreku. He publically forgave him and Mazreku was imprisoned for this act. It seems that Schwander-Sievers, mixed this story with what happened, one year later.
The conflict between Hajdari and Mazreku was taken as a central case in the contribution of Krasztev  on issues of collective amnesia and vendetta in post-socialism. It is interesting to notice that the author offers a solution using Gjeçovi’s published Kanun on how this conflict could have been settled down through customary law. [2002: 204]. Use of Gjeçovi works to compare the ideal type of behavior in post-socialism is symptomatic to most of the anthropological and non anthropological interpretation of blood-feud in contemporary Albania. According to Krastev, communism had produced a collective amnesia on kanun in this tribal society because it had exterminated all “tribal leaders” that had knowledge on it. To back up this argument, he takes the trial of Mazreku where the author of shooting Hajdari, when asked by the judge, declared that he had no memory and knowledge on kanun jurisprudence [Krasztev, 2002: 197]. The fact that Mazreku was speaking in front of media in trial process, after a public debate between Socialist Party and Democratic party on the reasons of why Mazreku has shooted on Hajdari are not seen as factors that have probably made Mazreku to deny his knowledge on rules of costums of blood-feud. Also the fact that this case was not transformed into the blood-revenge between to social groups that both members of parliament came from, is not also used as part of interpretation and so on. However both articles, authored by Krasztev and Schwander-Sievers, are widely cited by anthropologists that deal with Albania in post-socialism.
Moreover, the image of tribal society continues to be very much present even in recent publications focusing on North Albania. Robert Elsie’s recent publication named The Tribes of Albania [Elsie, 2015], though intended to be a work describing how the Albanian tribal world had been in the past, has neither a real critical reflections on the meaning of “tribes” itself nor an analysis about the social organization of the so-called „tribes“. Moreover the image of tribe, kanun, blood-feud, in this work does fit quite well within the paradigm of legal primitivism build by the Indo-European studies of XIX century. Even in cases of a critical stance toward the idea of tribal organization of Albanians, as Doja’s article on social morphology [Doja, 1998] show, the reader besides observing a strong ethical deficiency and an eloquent translation of fieldwork data gathered by other Albanian ethnographers senses more a defensive position rather than a thorough understanding of society’s social organization.
The failure to fully grasp the whole meaning and complexity of the social infrastructure upon which the customary law relies together with dynamic relation between the state, society and culture seems to be endemic to post-socialist international anthropological scholarship on Albania. This has led many scholars to hastily produce schemas and profiles where to “make fit” the so-called man of kanun that somehow reproduce a discourse that was already build by the XIX century Albanian studies scholarship. However some exceptions on the way how Albania society is anthropologically interpreted can be done. Referring to that anthropological research done in North of Albania works of Clarissa De Waal (2005) and that of Saltmarshe (2001) can be seen as good examples how ethnography took primacy in anthropological interpretations. Both of this works are based on ethnographic data on the way how totalitarian state had manage to change on culture, and have a lot of ethnographic insights that speak on legal plurality, or social pluralism in general.
Total Crises, Blood-Feud and Legal Plurality
It quite difficult to geographically locate the phenomenon of blood-feud. However, the North of Albania seems to be the location where the existence of it, is materialized more than in other regions of the country. Yet a specific research needs to be done to have a clearer view of the geographical dispersion of blood-feud in contemporary Albania. Nonetheless, it need to be underline that blood-feud in a number of researches by foreign scholarship seems to be heavily influenced by a sort of geographical and cultural determinism. The emphasis continue to be on catholic communities of mountainous regions of North Albania or at best, it is observed among members of these communities that have migrated in lowland or sub-urban areas of different cities in post-communist period Albania [Voell, 2001}.As such the contribution of international post-socialist anthropology on blood-feud and Kanun in general has led to the conclusion that the blood-feud is a cultural phenomenon mostly alive in mountainous regions of northern Albania. In case of contribution of Voell, side by side with the geographical reason this area is also composed with a Catholic majority.
“ Today kanun is mostly practiced in mountainous regions of Northern Albania with Catholic Majority..” [Voell 2011].
This geographic determination in both contemporary national and international anthropology on customary law and particularly on blood-feud continues to be hunted to the image on Albanian society inherited by XIX century Indo-Europeanists Field data suggest that the geography of the blood-feuding includes also predominantly Muslim regions as Has Luma and Dibra, in North East, or some rural areas close to Tirana such Benda region and some Western Lowland of Albania with mix religious communities [for the case of Has region see Bardhoshi, 2011]..
Besides the geographical enclaving of blood-feud, until now none of the publication on the matter has given a due reflection on the correlation between the nature of modern state law andits moral authority in everyday life. Regardless authors’ intentionality, the publications on blood-feud see the continuity of blood-feud only on cultural terms. The general overview on blood-feud existence especially in the context of modern state is seen by many scholars either as a failure the state to control society during communism, or as a by-product of the total failure of the state in post-socialism. My invitation is to draw from the perspective of legal pluralism theory and to observe how different legal systems (e.g. state law, customary law, religious law) works at the same time, and how people make use of them in every day.
In contemporary Albania, blood feud moral legitimacy derives both from culture and life world of the state. The traditional narrative that legitimate blood-feud often takes the past as indicator. People would refer to an always practice of justice as well as an ancestral way of doing justice. Moreover, people have also appeal to an idea of a practice that happens all over the world. Beside the past, ordinary people tell you when asked on the matter that they continue to apply blood-feud due to the history of and actual practice of state law [Bardhoshi, 2015].
Moreover, the widespread corruption of the state courts has been used as a fact to re-legitimate the blood-feud. It is no exaggeration to say that the judiciary system in Albania is the place of injustice both by local morals, and paradoxically also by reference to the state law. My personal experience as part of the judiciary system for one year [2000-2001], as citizen and as legal ethnographer confirms it. The abrogation of death penalty by state as consequence of the international pressure in 1999, the new European Standards set of prisons, the flexible nature of imprisonment together with the corruption in the judiciary system have equipped everyday people with arguments that understand the state law both in normative and in practical level as not having the intention to punish proportionally according the crime done. The idea of balance, fairness and proportionality is at the core of local meaning justice and it is organically linked to the customary law ideal and practice.
As such living between two or more legal systems situates the individuals and the idea of justice in far more complex social settings. It is needed to acknowledge that people living in legal plurality conditions, struggle to find solutions meaningful to them that safeguard the idea of dignity and selfhood while navigating between legal systems. In my observation, the post-totalitarian condition of Albania society, both customary and state law, as legal systems are in crises as long as they are not able to provide full answers for people because legal pluralism as condition multiplies the social field in which the individuals operates. Under such circumstances of multiplication, the uncertainties are even greater and consequently the individual is caught in between and betwixt these social fields, between the moral values and applicability of legal systems. In our case both legal systems mutually exclude each-other posing pressure on the shoulders of the individuals in facing everyday challenges and seeking meaningful solutions.
The condition of plural legal systems in contemporary Albanian positions the individual in a liminal zone determined both by geography and temporality of existence. The institutions of customary law even though very weak in nature, are geographically and culturally close to the people, whereas state institutions such as courts are culturally and geographically distant. For many people living in areas with poor infrastructure, beside the fact that it might takes many hours and sometimes even a full day to go in court for a deposition or testimony, beside the fact that due to prolonged processes and bureaucratic procedures going and coming back to the court the journey might be repeated several times, besides the economic cost and beside the fact that the sentence might be after few years but at the end the verdict won’t be in proportion to the crime. This fact together with the wide spread phenomenon of corruption and bribery in the legal system has widen the gap between the people and the state.
In terms of time, the general perception on both blood-feud and state authority is the same: they never die. Thus, people are aware about the fact that living in legal plurality, and because of this awareness they have adopted and change many aspects, including the ethics of blood-feud. In court, for example, blood-feud killings are not accepted or admitted public by the culprit. The act is public and it has given the message to the family of the killed and local community. The reason behind it is not related to the fact that the individual is afraid of harsher punishment from the state, even though the state law does have a specific article with specific reference to the murder that does not really affect the nature of the verdict, neither does the person feel ashamed about his deed. The proclamation in court and the condemnation by it with several years in prison, does not assure the culprit that his life will be spared afterwards from the family of the person killed. Under this logic it is pointless to declare it. The culprit together with the family of the victim see that the idea of reciprocity between the parties is not balanced by the years in prisons, because the principle of life in such cosmology cannot equalized to prison. Among others, the post-communist Albanian state has failed to find ways how to mediate between the universal human right principles to which it adheres and the local legal cosmology of hierarchic values of customary law, in producing verdicts that close the system blood-feud. It should be noted that the blood-feud among has also its transnational dimension and it seeks to balance the principle of life also in strong and consolidated legal system.
Contrary to the position held by Stephanie-Schwander-Sievers and others, I argue that blood-feud spirit is not based on the principle of humiliation of the other (Schwnder-Sievers, 1999, 2003). The basic function of blood-feud institution is not to humiliate the other but to produce a meaning full justice that fit within a define worldview. The cosmology of kanun reflects a contradictory logic that often results in a perpetual tension between values. On one hand it promotes the idea of equality among parties upon which the principle of balanced reciprocity is founded, and on the other such principles should work on a hierarchical and asymmetrical social relation based on age, sex, prestige and so on. However, the idea of equality (between males) both in terms of blood-feud and land property is a dominant social ideal and practice. Field data show that the universe of kanun man is dominated by ethical stances also on matters of blood-feud and there is no evidence to think that the intention of such social and legal institution was to humiliate the adversary or the other.
One of the shortcoming of a number of works relies especially on issues related to customary law such a blood-feud or land distribution (Pichler, 1999, Saltmarshe, 2001, De Waal, 2005, Schwnder-Sievers, 1999, 2003, Mustafa, Young, 2008), relies on the confusion produced by an almost romantic view of how the customary should have operated (normative level) and the generalization of practices based on extreme cases. There is no need to underline and further discuss that in any legal system the tension between normative level and the practical one. The plasticity of customary law is part and parcel of the everyday life of any law. It is precisely in its everydayness that a norm shows the tension that the agency has between the ideal and application of it, especially in changing contexts and uncertain situations of modernity. Moreover, the tension between the ideal and the practical, it is accelerated in plural legal contexts and in times of crises, post-communist Albania society, the rupture between the both levels might be even more evident. But, this is, not enough, to lead to conclusion that a normative system that promotes a number of values and ideals does not exist in any given society because the practices of it do not quite fit it. The practical level of normative legal system is it customary, religious or etatic reflects more on how the agency articulates and attempts to find meaning and give legitimacy to its deeds rather than a rejection of the values and ideals. Moreover, the customary law as any legal system is subject to change. As such, field work data suggest, that the ethics of blood-feud, meaning of legal personae, and a number of beliefs that legitimate the blood-feud practice, particularly the ones related to the next-life blood-feud avenger and the victim, have changed in the course of modern times. In traditional cosmology, blood-feud was seen that did not communicated with the living also with the dead, as far as the avenger in not taking the blood would not be accepted by his ancestral kinship in the next life. But, in most contemporary narratives the action is not legitimated by reference to the afterlife. blood-feud has become a more profane act. While in the past subject to avenge where all the patrilineal males from the age able to carry a rifle of the killer, today’s the direct subject of avenge are usually the proper killer, his son(s), or his brother(s), and sometime the father. In very few cases subject to avenge are patrilineal nephew(s) and grandfather. There have been also cases of matrilineal nephew, the uncles and other relatives subject of blood-feud. In post-communist reality of blood-feud in Albania there have been few cases were women and children, priory excluded as subject, to have been killed. Moreover, the way, the time and a number of micro-practices regulating blood-feuding have changed too. All these examples speak about the profanisation of blood-feuding. Thus many cases may lead to the assumption that contemporary blood-feuding intends the humiliation as an act. Field data suggest that people involve in the blood-feuding and the communities around them, besides the multiplication of moralities, justify their deeds on terms of justice and discard humiliation on ethical grounds, outside the meaning of justice.
It can be concluded that both national ethnology, and international anthropology on blood-feud in post socialist Albania, are influenced by images and categories deriving from legal primitivism embedded within the Indo-European tradition from where Albanian Studies emerged during the end of XIX century and the beginning of XX century. Images of legal primitivism were constructed during very turbulent times, times of crises, times of the end of Empires, times of emerge of social sciences, and time of creation of nation-states, times of collapse of old regimes and the raise of modern times. Moreover in post-communist context, Albania is seen both as Balkan and East country, and the notion of ‘legal primitivism’ might sound and like legal orientalism. Both national and international anthropology continue to be part of an articulate legal primitivism in different ways while engendering a sort of romanticist and etatist view on society that was actually in total crises. The national tradition of ethnology reads the man of kanun as dominated by values, norms, and epic values, as far talking speaks about the past before nation state.
Whereas the international post-socialist anthropology endorsing a deconstrutivist approach to the normative character of the man of kanun build by national historiography (including ethnology) and abiding to a sort of realistic ethnography, reinvents a man of kanun without ideals. The nature of pragmatic view became crucial in legal anthropology for long time now, and its seems that we have to do with the same phenomenon in many contribution of post-socialist anthropology on kanun and blood-feud in Albania. But there is a big difference between the anthropological invitation on pragmatic view and that which is articulated in case of post-socialist Albania. In history of anthropology of law this can be traced in Malinowskian tradition of anthropology, which is an theoretical invitation to abandon classic legal anthropology on primitive law.
In Malinowski point of view, the student of anthropology should keep the focus both in pragmatic point of view of legal norms and to the practice of these norms. This perspective was supposed to enable anthropologist to see primitive man, as pragmatic persona in terms that primitive man was not a slave of tradition, but the primitive man as like a modern man is seen capable to negotiate legal norms according to his own view and pragmatics needs and so on [Malinowski 1926]. But what is the difference between Malinowskian ‘legal primitivism’ and that we noticed in international social anthropology devoted to blood feud in Albania? In Malinowski theoretical invitation we can notice his effort to argue that the legal logic and practice of primitive man works similarly comparing to logic of modern man.
What I propose here is that local meaning of blood-feud could be traced and understand better through a combination of lens of long-duré historical and presentist legal pluralism, a deep and critical analysis of anthropological literature on the matter paired with thick ethnographic research. A critic both in literature and on politics of exoticism that are still dominant in anthropological literature which make possible for legal primitivism to fit well in anthropological publication. Question of time and space are crucial as always. As Fabian as suggested in his seminal work Time and the Other , ethnographic present should take care that in anthropological writing we should incorporate concepts of history and time due to portray coevalness between informant and ethnographer. Morevoer, anthropological text face always the risk to freeze the time, and that risk is very evident in both national ethnologgy and international anthropology. Turbulent times, are at the same time, social times with fertile seeds of change, and the ethnographic research is under hasty to became history in very short period of time. That combination between a historical with a dynimic ethnography of presents makes possible to anthropologist to avoid the essencialist cathegoration. This approach would enable a thorough anthropological exploration on the effects of the politics of liminalisation that totalitarian state applied, and how failed or any format of modern state is rearticulating this in new political context, on people, culture and society.