But a more fruitful source of discord than individual cases of friction is the competition between the tribe and the clan. There is no doubt that these polar associations did not spring from the same root, but differ in their very origin; the tribe probably coalesced under the rule of a communistic matriarchal system (endogamous), while the clan is based on an aristocratic patriarchal system (exogamous). At the present time the tribe is regarded as merely an expansion of the clan, both being held together by the same paternal consanguinity. But the degrees of political kinship vary, the ties of blood have not the same force throughout; they act far more effectively in the smaller circle than in the larger. The individual stands in no direct relation to the tribe; his connection with it is through the intermediate links of the clan and the family; his membership in the community is conditioned by his membership of the subordinate groups. As a rule, therefore, the individual finds that his skin is nearer to him than his shirt whenever the interests of tribe and clan diverge. And it goes without saying that this is very often the case.
The defects of the system are to some extent compensated by certain rudiments of government to be found among the Arabs. There is a leading aristocracy; the clans have their chief, and a head chief, the said, is at the head of every tribe. The position of all these chiefs depends upon voluntary recognition of the fact that they are fitted to hold it by their personal qualities and their fortune. They are spontaneously appointed by the common voice, without election or any similar process, and though there is an inclination to make the authority hereditary and the sons reap the advantage of gratitude felt toward their fathers, yet each man must, by his own ability, anew make good his claim to the honours he has inherited if he is to remain in power and public esteem. The word of these chieftains carries most weight in the assemblies in which they meet every evening to talk, dispute, and deliberate. The said gives the casting vote. He decides, for instance, when the tribe shall start on its migrations and when it shall encamp. Generally speaking, however, the chiefs and the said have no advantage over the rest in privilege, but only in obligation. Among the Arabs noblesse oblige is no empty phrase, but a substantial truth. The nobles must distinguish themselves above the rest in the duties incumbent upon all; they must take on their shoulders the burden which others pass by, and out of their own abundance make good the deficit caused by lack of corporate feeling in the multitude. They must be liberal in all things; must not spare their blood in feud nor their goods in peace; they must entertain the stranger, maintain the widow and the orphan, feed the hungry and help the debtor to pay. The principal share in bearing the common burden falls to the said. In return he receives the fourth part of all booty, but he nevertheless often spends his whole fortune for the common stock; his position brings him honour and reputation, but never gain, and therefore does not procure him the envy of baser natures. But his most important duty is to maintain the unity of the tribe and to check the disintegration to which it is liable from individual selfishness and the particularism of the various clans. He is there to step into the breach, as the biblical phrase has it. He is the born mediator and peacemaker.
For all that, he can only negotiate and apply moral pressure. He is but the first among equals; he has great authority but no supreme power, and in the last resort that is not enough either for the external or internal affairs of the community. In war there is no thought of compulsory service, no idea of discipline, of absolute command and obedience. If one clan will not go out with the rest, it separates from them and hardens its heart against their mockery and contempt. If the men will not follow their leader, he sometimes has recourse to an attempt to put them to shame by setting up his sword and threatening to fall upon it, unless he is obeyed. Danger from without is, however, the readiest means of inducing them to submit to a single will, whereas the lack of a central sovereign authority is much more sorely felt in internal affairs.
The only function of the ancient community, apart from self-defence, is the maintenance of peace within its own borders, and the means to this end is the law. The Old Testament, for instance, knows nothing of administration as a function of the state; to rule is to judge, and the generic term for ruler is judge.
The Arabs are not without law, though with them its limits are wider and less strictly defined than with us and include the decision of questions which do not lead to impeachments and law-suits, but refer to duties, not rights.
They also have judges who administer justice. Disputes between fellow tribesmen are brought under discussion in the daily palaver and are there settled without any legal formalities. But international disputes, i.e., matters disputed between members of different tribes, may also be settled by law, if both parties agree to choose an arbitrator to whom they will refer the decision. Anyone may undertake this office; in difficult cases a seer or priest is frequently applied to, or some other man who enjoys general confidence and has a reputation for exceptional wisdom. The arbitrator sometimes makes the parties swear to accept his verdict, whatever it may be, but his business is merely to discover and interpret the law, and he has no power to enforce it. The disputants consequently apply to the judge merely to learn the rules of the law, not to sue for and obtain their rights. His judgment has no legal force and does not entail the execution of the sentence, with which, in fact, it has nothing to do.
An instance of what appears to us so singular a state of things, may make the matter clearer. Shortly before Mohammed’s arrival at Medina, a man of that city went to law with a Bedouin from the neighbourhood before a wise woman about a sum of money, i.e., camels. The woman decided in favour of the man of Medina; he was a well-known person, Suwaid, the son of Samit, by name. When they came to the parting of the ways, Suwaid said to the Bedouin, “Who will be surety that thou wilt pay me the camels?” The other promised to send them as soon as he reached home. But Suwaid, not satisfied with this, wrestled with his debtor, threw him, and bound him. He then carried him off to Medina and kept him in custody, until his kinsmen redeemed him by paying him what he owed.
Criminal jurisdiction, as we understand it, is rendered impossible by the absence of a supreme authority, a magisterial tribunal. Although fidelity to one’s kindred is a moral law and the violation of it a sin, yet the Arabs have not reached the abstract conception of crime against the community at large, still less of punishment inflicted by the community—since for the community to cast off a troublesome or unworthy member is not, strictly speaking, a punishment. They only recognise private offences, and the punishment of these is the business of the individual. There is no official process of investigation with the coercive methods of vigorous cross-examination. If anything is stolen, the owner proclaims his loss aloud and lays the thief under a curse unless he restores the missing article, and all his accomplices likewise, unless they tell what they know of it. If murder or manslaughter has been committed by an unknown hand and this or that man is suspected of being the perpetrator, his clan takes an oath of purgation for him, which may, however, be counterbalanced by an oath to the opposite effect on the part of the dead man’s clan.