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Approximately one thousand years ago Gypsies, or Roma, left their native
India. Today Gypsies can be found in countries throughout the world, their distinct culture still intact in spite of the intense persecution they have endured. This authoritative collection brings together leading Gypsy and non-Gypsy scholars to examine the Romani legal system, an autonomous body of law based on an oral tradition and existing alongside dominant national legal networks.
For centuries the Roma have survived by using defensive strategies, especially the absolute exclusion of gadje (non-Gypsies) from their private lives, their values, and information about Romani language and social institutions. Sexuality, gender, and the body are fundamental to Gypsy law, with rules that govern being pure (vujo) or impure (marime). Women play an important role in maintaining legal customs, having the power to sanction and to contaminate, but they are not directly involved in legal proceedings.
These essays offer a comparative perspective on Romani legal procedures and identity, including topics such as the United States' criminalization of many aspects of Gypsy law, parallels between Jewish and Gypsy law, and legal distinctions between Romani communities. The contributors raise broad theoretical questions that transcend the specific Gypsy context and offer important insights into understanding oral legal traditions. Together they suggest a theoretical framework for explaining the coexistence of formal and informal law within a single legal system. They also highlight the ethical dilemmas encountered in comparative law research and definitions of "human rights."
Romaniya: An Introduction to Gypsy Law
Walter O. Weyrauch
The appearance of Romaniya or Gypsy law in legal literature is of extraordinary moment for jurisprudence and the comparative study of law. This autonomous body of law, existing unnoticed among dominant legal systems, has been invisible to legal scholarship and provides a considerable challenge to established ways of thinking.
This volume contains ten essays that describe aspects of Romaniya. Much of the presentation has testimonial character, for example, accounts of past field research in Finland, as told by Martti Grönfors, or of giving expert testimony in a criminal trial involving a Gypsy who had used a wrong social security number, as related by Anne Sutherland. Two of the contributors belong to the Romani people: Ian Hancock, who provides a glossary of Romani terms, and Ronald Lee, who gives an account of the workings of Romaniya and the kris proceedings that may occur in cases of violations. The unique value of their contributions consists in validating and often qualifying earlier anthropological accounts given by outside observers.
The reader should not expect uniformity of viewpoints. These essays deal with a legal culture that for about one thousand years has been based on oral tradition, and contradictions are inevitable. Lee points out that the various branches of the Romani people know little about each other. Thus generalizations based on accounts from one particular group are bound to be misleading, as stressed by Thomas Acton, Susan Caffrey and Gary Mundy. Even spelling of terms within the volume is not uniform, although efforts at standardization of Romani, the Gypsy language, are currently under way.
The absence of a common sovereign or territory may contribute to misconceptions. Commonly used terms, such as "law," "courts," or "sanctions," are impliedly based on the presence of a state that prescribes rules about responsibilities and individual rights. Much of this is not applicable to the Gypsies. Yet the Romani people have survived as a distinct culture, although dispersed throughout the world, under conditions of often ferocious persecution. Their legal culture, perhaps strengthened through persistent external threats, appears to have been largely responsible for this miraculous feat. The vitality of this culture and the function of law in its survival make comparisons with legal notions familiar in the Western world particularly stimulating.
Although this volume encourages a wide variety of analyses, a search for common threads reveals three themes that have recurred with some frequency: first, the link between the law and the human body in Romaniya, with consequences for the conduct of daily life, as distinct from a legal system based on abstract rules; second, the arbitrariness of many rules of Romaniya that seem to defy any form of explanation or purpose; and third, the frequent criminalization of the Romani people under the dominant legal systems that, even though externally imposed upon them, in subtle ways appears to be related to their internal legal culture. For purposes of discussion these three themes are presented under the headings of sexuality, irrationality, and criminalization. I will try to show that, while these labels have shock value, they represent a reality that is amorphous and complex. Although I suggest a few theories of my own, I do not intend to preclude other forms of analysis.
The curious link between the human body, intimate body functions, and the law is described in various manifestations by the contributors. Sexuality, procreation, and marriage seem to be perceived in Romaniya as fundamental notions that sustain law. In a loose way one may view them as an equivalent to a constitution that is unwritten and gains its strength and binding force by not being articulated. The very foundation of law is protected by taboos that, although they are adhered to, prevent their discussion and explanation. To the outside observer these taboos, especially those relating to sexuality and procreation, are difficult, if not impossible, to understand. Gender is an important factor. An appearance of male dominance conceals the powerful position of women. Women have the power to curse and to pollute, in particular Gypsy men. They are also the guardians of law, because they communicate the taboos to their offspring from early infancy.
Grönfors' field research on the Finnish Kaale Gypsies is truly astounding. They have retained archaic notions in their pure form, having been cut off from other Romani groups for four hundred years. To the Kaale the concepts of marriage and even of virginity are already polluting because they imply sexual conduct, or the significance of its absence. Rituals have been developed that permit procreation without acknowledging that it has ever taken place. Yet he posits that the absence of marriage among the Kaale is an essential element in the ways in which their legal system operates. Marriage establishes loyalties that could become burdensome in cases of serious conflicts. Since the Kaale have no judicial proceedings, like the kris of the Vlach Gypsies, blood feuding becomes an issue. Openly acknowledged affinity relations create loyalties that could be problematical in cases of blood feuding and even disturb those mechanisms that have been developed to avoid this most serious sanction.
In his searching comparison of Romaniya with Jewish law, Calum Carmichael suggests a trend toward "desexing of ancient customs." The traditional custom of a Gypsy woman tossing her skirt in order to defile a possible transgressor, once perceived as a means to bring about the need for a kris proceeding, is becoming increasingly discredited. The woman and her family, as also described by Lee, may become themselves impure by resort to what was earlier perceived to be legitimate behavior. This evolution may find a parallel in the characteristic of contemporary law, common in Western cultures, to rely on abstract rules as a primary source of law. Judicial proceedings, accordingly, are meant to be as neutral as possible by minimizing references to personal factors, including sexuality. Exclusionary rules of evidence and conceptions of relevance, unknown in Romani proceedings, support these policies. Theoretical constructs originating from the state may be felt to be necessary to govern effectively in multiethnic and industrialized societies. Yet what may be necessary under modern conditions may also suggest why, in terms of vitality and survival power, Gypsy law has been superior to the law of the state.
On the other hand, even in the laws of the dominant cultures, the laws of the family and of gender distinctions, although embroiled in controversy, may have an increasingly recognized role in the functioning of law. For instance, the relationship between family law and commercial law is again being explored. Practicing lawyers, in applying broad concepts of relevance in legal counseling, are aware that any controversy, regardless of the specialization involved, has a personal dimension. Furthermore, the trend toward "desexing" of law, as described by Carmichael, is not likely to be fully effective. Unrecognized oral legal traditions continue to compete with the law of the state and often determine the outcome of cases. What is disparaged by legal scholarship as mere strategy may be one form for oral legal traditions to rival the supposedly neutral law of the state. To be effective, these strategies can only be hinted. If a lawyer were to refer to them openly, the strategy would become as damaging as the articulation of taboos in the Gypsy culture. Loss of credibility or, in more serious cases, violation of professional ethics, would bring about this result.
Many of the rules of Romaniya or, as Lee calls it, the marimé code, make no sense to the outside observer. The rule that the presence of women on higher floors of a house pollutes the occupants of lower floors appears to be irrational. In some of the rules the possible explanation is so farfetched to Western thinking that they are felt to be absurd. One could explain the replacement of used sinks and toilets with new facilities in rented premises by reference to extreme hygienic precaution. Yet a frame of mind that requires such extreme measures approaches irrationality to ordinary thinking. However, to speak of arbitrariness or irrationality implies that some absolute standards exist that permit final value judgments. The doubtful nature of such assumptions can easily be shown. They are expressions of ethnocentrism. To the equally ethnocentric Gypsy the validity of the rules of Romaniya is beyond dispute. Their "rationality" is as self-evident as their irrationality is to the outside observer. To this frame of mind further explanations are offensive, as the following illustration shows.
Romaniya prohibits the articulation of intimate sexual matters, especially in mixed company. A Gypsy woman to whom passages on these matters were read reacted with the caustic statement that this was "trash." To her it was obvious that no further explanation was needed. In fact, any attempt at giving reasons, both for the read materials and her response, would have violated the same rule, thus aggravating the offense. Whenever one is faced with this form of an impasse, including in our legal system, it is possible that the outer bounds of comprehension have been reached. Thus what is declared to be clear could sometimes have elements of the opposite. The purportedly self-evident, combined with an unwillingness to engage in further discourse, could mean that the matter concerned is not obvious at all. One is faced with unknown and therefore threatening issues. Social taboos may have the function of warding off further inquiries.
An added complication relates to the efficacy of legal rules. One would assume that irrational rules are less effective than rational ones. However, this assumption may not be accurate. The effectiveness of Romaniya over a millennium may have been largely due to the religious factors that are inextricably tied to law, but inimicable to rational explanation. The whole distinction between rationality or irrationality of rules may be irrelevant for the Roma. Even if one were to call these rules irrational, their binding force is perceived to be tied not to human reasoning, but to divine forces. A rule is there, so to say, because "it is." The gaje who look for explanations only demonstrate their fundamental ignorance. They are not "in the know." Even Gypsies from a different branch of the Roma, with somewhat different rules, merely prove that they are not "our kind of Gypsies." Orthodox beliefs, among the Roma as well as Judeo-Christian cultures, will resist attempts to explain the reasons for a given rule, but merely insist that it is to be strictly followed. As Lee explains, Romaniya is really based in an ancient folk religion going back to Indian sources, and efforts to explain it contain the seeds of doubt. As soon as rules are perceived to require a rational basis, they can be attacked by examining their elements. A flaw in a single element of a rule of law may destroy the logic of the whole. Resorting to science could be especially damaging because scientific knowledge is constantly modified and revised.
Within the American legal culture these factors are not unknown. Any attorney has experienced that efforts to sustain a view by legal reasoning are often felt to be irritating by those who are listening. To rely on rational explanation may be intuitively felt by them to be a sign of weakness that may undermine the majesty of the law. On the other hand, pure invocation of irrationality is not likely to work under contemporary conditions either. The belief systems in a modern state are too heterogeneous for this form of power exercise. A system of law that stresses the protection of individual rights, if necessary against the family and the state, is bound to insist on attempts at rational explanation and thus, in comparison to Romaniya, may be relatively vulnerable. A possible question is whether attempts at rationality in law are really hiding continued irrational factors that paradoxically either may be deplorable or may add to the stability of the system, depending on one's point of observation.
Caffrey and Mundy, Lee, Sutherland, and I variously refer to the criminalization of the Gypsies by the dominant society. Since criminalization is not a trait of the described group, but the result of a characterization imposed from the outside, one might wonder whether this aspect is beyond the scope of this volume. Yet it is no accident that this topic comes up in descriptions of Gypsy law. Much of the so-called criminal propensity ascribed to the Gypsies is based on disregard or ignorance of the rules of Romaniya that are followed by the Roma. Even if these rules are pointed out by expert witnesses, they tend to be dismissed as irrelevant by the police or the courts or, as Grönfors and Sutherland document, are used to sustain convictions. These essays contain examples of this dilemma.
Use of multiple names, misuse of social security numbers, or otherwise inadequate means of identification, easily explainable under Gypsy law as not being based on illegal motives, are taken routinely as evidence of criminal intent. There is an overwhelming pressure on Gypsies to confess to deeds that were not committed, to avoid consequences that are unbearable to them. As Sutherland explains, a prison term for a Gypsy, being deprived of any association with his family and peers, amounts to the equivalent of solitary confinement. Gypsies are on a starvation diet in prison because they do not eat food that, under their notions, is wrongly prepared and served under conditions that are polluting. The whole prison environment, being conceived and administered by non-Gypsies, is severely polluting, although the criminal sentence as such carries no stigma to the Roma. The pollution is so serious that a separate formal proceeding before a Gypsy court (kris) may be required to reinstate the convicted Rom to full status among his fellow Gypsies.
Under Romaniya any contact with dogs is polluting, dogs (and cats) being perceived as inherently unclean animals. The potential physical contact with police dogs is consequently viewed as a frightening threat, not because of fear of attack as the police may surmise, but because of concern of being polluted. The presence of a police dog during investigation or detention, as far as the Roma are concerned, may amount to torture. A strip search may be experienced as a permanent impairment. Danger of detection is not the issue, but concern about being polluted. It may severely impair the marital chances of unmarried young Gypsy women. Any of these and related incidents is likely to trigger responses from the Gypsies that, to the police, confirm their suspicions of a guilty conscience. Sources from other jurisdictions confirm this state of affairs.
Martti Grönfors has described the problem of criminalization of Gypsies, based on extensive field research in Finland. His hypotheses and conclusions, although couched in general terms, relate mainly to his observations in 1975. Citing Émile Durkheim, he suggests that any society, regardless of its political or economic conditions, needs its criminals. The dominant group within any society, in looking toward potential threats, is likely to focus on those segments of the population that are least able to defend themselves. Because of this focus of attention, Grönfors maintains, it is inevitable that these minorities have the highest rate of crimes and constitute the highest proportion of the prison population. Police statistics of arrests are misleading because, as the Finnish experience shows, they tend to validate preconceived notions on criminality held by police officers and the general public.
Since the police are charged with maintaining law and order, many of their attitudes and conduct, Grönfors suggests, are occupational hazards that to some extent are unavoidable. The police force is charged with defending established values in situations that often permit only limited time for reflection. Its members tend to be moved by a spirit of "moral indignation" that is likely to be directed toward out-groups, such as the Gypsies. Close observation and higher police presence result in inflated arrest statistics. Grönfors stresses that criminality occurs in any group or population, but he documents special circumstances in regard to the Finnish Gypsies.
Based on information gathered from the Helsinki Criminal Investigation Bureau, Grönfors found that the police reports on crime often related to the same group of Gypsies. These persons were held in low repute as deviants within their own Romani communities. A closer examination revealed that the Gypsies involved had been taken from their families in early infancy and, after having spent their formative years in institutions, had lost contact with the values as reflected in Romaniya. Yet their multiple crime sprees inflated the police statistics, seemingly supporting the charge that Gypsies have a general propensity for crime. Similar observations were made by Lee for Canada. Young Gypsy men who were arrested and convicted for robbery were mostly from marriages in which the mother was a non-Gypsy, or had been raised in foster homes by non-Gypsies.
Excerpted from Gypsy Law by Walter O. Weyrauch. Copyright © 2001 the Regents of the University of California. Excerpted by permission of UNIVERSITY OF CALIFORNIA PRESS.
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|Editor's Note On Terminology||vii|
|1.||Romaniya: An Introduction to Gypsy Law||1|
|2.||Autonomous Lawmaking: The Case of the "Gypsies"||11|
|3.||Theorizing Gypsy Law||88|
|4.||Informal Systems of Justice: The Formation of Law within Gypsy Communities||101|
|5.||Gypsy Law and Jewish Law||117|
|6.||Juridical Autonomy among Fifteenth and Sixteenth Century Gypsies||137|
|7.||Institutional Non-Marriage in the Finnish Roma Community and Its Relationship to Rom Traditional Law||149|
|8.||A Glossary of Romani Terms||170|
|9.||The Rom-Vlach Gypsies and the Kris-Romani||188|
|10.||Complexities of U.S. Law and Gypsy Identity||231|
|11.||Oral Legal Traditions of Gypsies and Some American Equivalents||243|