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A woman's place: a confrontation with Bedouin custom in the sharia court.

The potential for conflict between Bedouin custom and Islamic law (shari a) is illuminated by the study of a decision of the shari a court in al- Arish. A Bedouin woman from the al-Rumaylat tribe prosecuted her husband in 1906 and demanded the annulment of their marriage on the grounds that her brother had given her in marriage when she was already an adult without her approval, as required by the shari a.(1) The main interest in this document lies in the fact that a Bedouin woman, who according to custom lacks legal standing, presented her case in court by herself, i.e., without being represented by an agnatic relative. Moreover, her claim represents a complaint against the supremacy of customary law and the agnatic guardian's authority, both of which still prevail in Bedouin society.

Orthodox Islam has been only superficially adopted by the nomadic Bedouin. Their process of Islamization is an ongoing process, and customary law, as embodied in the tribal arbitrator (hakam), is still binding for them. The sedentarization process of the Bedouins has brought them closer to normative Islam. This religious change is intensified by the Bedouins' proximity to urban centers where religious, economic and administrative functions are carried out. The development of state institutions and the spread of education and modern means of communication have also contributed to strengthening the Bedouins' relation to Islamic institutions and to the ulama, experts in interpretation of the shari a. But above all what brings the Bedouin closer to normative Islam are the exigencies of a modern state, especially licensing, in which the shari a courts are involved. Moreover, the authority of the shari i judge (qadi) derives from statutory legislation and state sanction, both denied to arbitrators. Thus, whenever they cannot realize certain civil and matrimonial rights through the arbitration system, the Bedouins have had to apply to the shari a courts, which have authority to enforce their judgments.(2)

The shari a court in al- Arish was probably founded in 1898 in the framework of the reorganization of the Egyptian administration under British influence. The parties to this lawsuit were Bedouins from the al-Rumaylat tribe who wandered between al- Arish and Rafah. Shuqayr noted that the Bedouins of Sinai recognized Islam as their religion but most of them did not know either the pillars of Islam or the patterns of prayer. He encountered only a few who actually prayed regularly. These were Bedouins who had contact with the town, but even they were not strict about prayer times. The only Islamic signs recognizable in the Bedouins were the celebration of the sacrificial festival (id aladha), the use of the prophet's name in oaths, and the blessing of the prophet in prayers. As a rule, the Bedouins were illiterate, and it was rare to find any Bedouin wandering in the al- Arish area who had studied in the school located there.(3) The proximity of the al-Rumaylat to an urban administrative, economic and religious center may partially explain their recourse to that court.

A verbatim translation of the first part of the document is as follows:

In the public session held in the shari a court of al- Arish on Wednesday, 6th of Ramadan 1324 [H.], corresponding to 24th of October 1906, 11 a.m., presided over by Ahmad Muhammad Darwish, the qadi of the court, and in the presence of Abd al-Majid Wahbi, the head court clerk (katib awwal), acting as the registrar. of the session, the following judgment was given in suit no. 60, registered in the suit registration book of 1906, which is presented by Aziza bint Hassan b. Fadl against Atiyya Salami, the farmer ibn Salami ibn Abd Allah, both from Arab al-Rumaylat and residing in Rafah, in the outskirts of al- Arish, concerning her claim to annul the marriage (faskh al-nikah) between her and him because of the irregularity of the contract [the marriage contract] (li-fasad al-aqd).(4)

PROTOCOL OF THE S131T (WAQAI AL-DAWA)

And after the shar i identification (ta rif . . . alma rifa al-shar iyya)(5) of the parties this present plaintiff put in a shar i valid claim against this present defendant, in which she demanded a decision be handed down in her favor against him for the dissolution [of the marriage] (tafriq)(6) between her and him, and that he would absolutely not oppose her and would not be her husband, since her marriage to him had been [concluded] without asking her permission and she was at the time of the marriage an adult (baligha) [and] sane (aqila).(7) The defendant answered that he had married her according to the practice of Allah and the practice of his messenger (sunnat Allah wa-sunnat rasulihi), and that the one who had given her in marriage to him [was] her brother Sulayman, for a bride price (mahr) about which he agreed with him, at the rate of ten Bantu,(8) which he paid him in the session of the [marriage] contract's conclusion (fi majlis al- aqd), and that the form (sigha) of the contract which was concluded was that her brother had put his hand in his (wada a yadahu fi yadihi) and said: "Have you accepted (qabilta) 'Aziza [?]." And he [the defendant bridegroom] said to him: "I have accepted her." And her brother said: "Have you accepted her according to the practice of Allah and the practice of his messenger [?]." And Atiyya the husband said to him: "I have accepted her." And her brother handed him a piece of camel's hair (qit at wabar) and told him: "Take, this is her qasala," and [the bridegroom] took it from him and accepted it. And [the defendant continued replying that] this form [the contract's form] is the customary practice of the Bedouins (al- urban) and that her brother consulted her before concluding the contract and she was satisfied with it and with the bride price; nevertheless she did not authorize (wakalat) anyone to conclude the contract.(9) [The defendant went on replying] that he had consummated the marriage (dakhala biha) in his tent and had had shar i valid privacy with her (ikhtala biha khalwa sahiha shar iyya),(10) [and that] afterwards she fled from his home while he was sleeping. And [he] demanded that she go to his place of residence and have conjugal community with him (tucashiruhu) in it. The plaintiff denied that she had known about her marriage to him, until after she had been compulsorily taken for the purpose of consummating the marriage; she [also] denied that she was satisfied with it [the contract] and

This first part of the document under review is an instructive example of the encounter which took place in the shari a court between custom, represented by a marriage contract concluded according to Bedouin tradition, and the shari a in its Hanafi version, represented by the qadi. One of the manifestations of custom revealed in this document is that an adult woman's guardian gave her in marriage to a groom chosen by him without her knowledge or even against her will. According to Bedouin custom, if the bride is a virgin, her guardian may give her in marriage as he wishes, but if it is not her first marriage her approval of the marriage is required. Yet, even if the guardian does not bother to obtain his adult ward's approval she has no legal way to annul the marriage.(11)

The second manifestation of custom is the way the marriage contract was concluded. According to Bailey, the custom common to all the Sinai and Negev Bedouins is that after the bride's guardian and the groom agree on the terms of marriage, such as the bride price, the groom is invited to meet the guardian. The latter hands him the qasala in one of the following versions: a branch or a green leaf, a dry bunch of grain, or a piece of wool or camel hair, as in our case. This custom symbolizes the covenant concluded between the parties. At the same time, the guardian offers the bride in marriage by a fixed verbal formula which transfers the responsibility for protecting the bride and seeing to all her needs from him (as her agnate) to the groom. The latter takes the qasala and states he accepts the woman according to the sunna of Allah and his messenger. The ceremony ends when the crowd present recites the opening chapter of the Qur an. In our case, the marriage offer by the bride's brother was made in the past tense, i.e., "have you accepted (qabilta) [?]," as required by the shari a, although the meaning related to a future offer. Anderson therefore prefers to translate the term ijab as a declaration and not as an offer.(12) Stewart stresses that the qasala ceremony is not a marriage contract but rather a betrothal, which has different legal consequences than those of marriage. He says that the marriage itself is concluded later, sometimes after a few years have passed. Stewart probably means that the qasala ceremony lacks some of the obligatory components of marriage, such as the sacrificial ceremony held by the groom before the consummation of the marriage in order to seal the contract. The description of the marriage process in our document is undoubtedly partial, as it jumps from the qasala ceremony to the consummation of marriage in the husband's tent. Nevertheless, it may be assumed that all the necessary components of customary marriage did take place.(13)

The fact that the parties declare that the contract is in compliance with the practice of Allah and his prophet (sunnat Allah wa-sunnat rasulihi) apparently leads to the conclusion that what we are dealing with is a valid shari marriage contract. Yet Layish, who encountered this formula in customary arbitration documents of the Judaean desert Bedouins, as well as Arif al- Arif, explain that it is rather a customary gift (ata) marriage. The Bedouins use the above-mentioned formula because they are not familiar with the requirements of the shari a and out of the profound belief that the customary marriage concluded by them is purely Muslim.(14)

The third manifestation of Bedouin custom is that the virgin bride was not informed of the groom's identity or about the conclusion of the qasala ceremony. According to Bedouin tradition, the bride frequently learns about this only when the groom and his relatives come to take her by force to the sacrificial ceremony after which the marriage is consummated.(15) It seems therefore that the woman's version in our case, namely that she had not known about the marriage until she was taken by force, is more reliable than the husband's version, i.e., that her brother had obtained her approval before the qasala ceremony.

The fourth manifestation of custom is the escape of the bride, who detested the groom chosen for her, from his tent on the morning following the consummation of marriage. Burckhardt notes that custom obliges the wife to obey him the first night but she is free to leave his home the next morning. Bailey states that she must find refuge with a person who is capable of convincing her guardian to free her from the marriage obligation. If she insists on being released from the marriage she has the right to stay under this person's protection, i.e., as a dakhila, until she gets a divorce. Divorce is achieved by applying to a customary arbitrator who specializes in women's affairs. This arbitrator tries to conciliate the couple by demanding that the husband buy the wife several presents and set his home near her relatives. If the husband does that but the wife still insists on divorce, the arbitrator declares her divorced. It is of interest to compare our case to a similar one related by Shuqayr concerning the Bedouins of Sinai: a girl from the al-Ahiwat al-Khanatila tribe was given in marriage in 1905 to a man from Nahl, according to the pattern of our case. The girl, who detested the groom, fled from his tent, after she had been forced to enter it in order to consummate the marriage, and hid in the mountains for a year. According to customary law, if the wife insists on rejecting the husband for a full year the arbitrator may accord her a divorce. When that year expired, the woman applied to a state official in Rafah and claimed that her husband had to divorce her according to the above-mentioned custom. She added that even if her husband had married her by a shar i marriage, her father should have asked her consent to the marriage. Since he had not done that she claimed to be divorced both according to custom and according to the shari a. The official supplied her with a letter asking the shar i qadi of Nahl to accept her request and not to compel her to marry someone she did not love. The qadi acceded to her claim and, eventually, she married her cousin of her own free will.(16)

The above-mentioned manifestations of custom have been thoroughly researched and are therefore not of great interest here. The impressive aspect of this document is both the fact that the woman resorted to the shari a court and the specific subject of her claim. According to customary law, a woman is not allowed to present her case in court since she lacks legal standing. Her guardian is the sole person authorized to represent her.(17) Therefore the fact that the woman represented herself in the shari a court, although perfectly valid according to the shari a, was an exception and deviation from the point of view of customary law. Moreover, this resort to the court did not flow from her wish to realize certain civil or matrimonial financial rights through the court's authority to enforce its judgments. The woman's demand that the court annul her marriage was exceptional, since it concerned a matter of personal status, which was grasped by the Bedouins as completely subordinate to customary law. This brave woman challenged both the Bedouin norm and her agnatic guardian's authority, an authority which is still dominant in Bedouin society. The marriage contract which she demanded be annulled was perfectly valid according to customary law, since the guardian is authorized to give even his adult ward in marriage as he wishes. The resort to the court testifies to the woman's surprising proficiency in the shar i marriage law. Perhaps she received some legal advice from someone, although there is no indication to this effect in the document. The woman preferred to seek support in the shari a court rather than in the arbitration system, knowing that the shari a would favor her case and could afford her immediate help, in contrast to customary law, which could at best support her only after a long delay. Davis notes that in Libya those Bedouins who preferred to resort to the shari a courts rather than to the arbitration system were those whose status in traditional society was inferior and therefore could not realize their rights through the arbitration system. Thus, divorced women who had not been able to realize their matrimonial rights, as well as heirs who were deprived of their legal share in the estate, resorted to the courts, hoping to get a judgment accompanied with an enforcement order in their favor.(18)

I return to the verbatim translation of the second part of the document, i.e., the qadis judgment:

Since this defendant acknowledged the formula of the contract which he had mentioned in his reply, and since acknowledgment is proof against the one who confesses (al-iqrar hujja ala al-muqirr), and since the marriage contract is invalid unless the expressions "marriage" (nikah) or "giving in marriage" (tazwij) have been used, or [also] that [any expression which] was designated for instantly transferring ownership over property (tamlik al- ayn) like the "gift" (hiba) and the "sale" (bay),(19) and since in the formula mentioned nothing of the kind was found, and what was found in it was only the acceptance (qabul) of the parties to the contract (al-muta aqqidayn), (and for those reasons) I passed a sentence against this present defendant Atiyya Salami declaring the irregularity of the marriage contract, which had been concluded between him and Sulayman Hassan concerning this present plaintiff Aziza, and I dissolved the marriage between the two parties to the suit [in the manner of] a shari dissolution (tafriqan shar iyyan), and I ordered him [the defendant] not to oppose her in marriage matters.(20) And this [the judgment] was announced to them in the session.

The qadi's attitude in our case is not an exception. Qadis carry the main burden for enforcing the shari a in Bedouin society, which is not used to considering normative Islam as binding. The outcome of the confrontation between the shari a and custom depends on the qadis' degree of orthodoxy, their religious and secular education, their social philosophy and, above all, their understanding of the Islamization process of a tribal society undergoing sedentarization. Our qadi fulfilled the woman's expectations. His decision was conservative and formalistic and he strictly applied the law of the Hanafi school. The qadi felt himself bound by the shari a and did not make any effort to compromise with custom and link it to the shari a. Layish notes that two definite, mutually exclusive attitudes of the qadis toward custom can be distinguished: on the one hand, acquiescence in its existence while trying to fuse it with the shari a; and on the other hand, enforcement of the shari a while rejecting custom absolutely. He argues that whenever the parties have not reached a voluntary agreement, the qadis carefully apply the shari a.(21) Both these attitudes are reflected in the judgments of the qadis in Israel: on the one hand, the qadis, at the request of Bedouin couples, give retroactive effect to customary marriages not performed by a shari ma dhum, the authorized agent of the qadi while closing an eye to their invalidity according to the shari a. This attitude probably emerges from regard for the common good and especially for the offspring of these unions, and also from the qadis desire to bring the Bedouins closer to normative Islam by this strategy. On the other hand, in those cases where the couple argues about the validity of their marriage, the qadis have no choice but to rule according to the shari a while rejecting custom absolutely.(22) This is indeed the case here. The qadi of al-Arish fully represented the attitude of the Hanafi school, while carefully quoting from its legal literature. The qadi ruled that the marriage was irregular because the contract contained only the acceptance of the marriage offer by the parties (. . . wa-innama wujida fiha al-qabul min al-muta aqqidayn). From his words interpreted literally, it may seem that the qadi's argument was that the marriage offer was absent in the contract. However, the actual meaning of the qadi, according to what he had said earlier, was that verbs derived from the root q.b.l. (his use of the term qabul refers to this) were not among the explicit or implicit marriage expressions required by the Hanafi school. It is worth noting that the reasoning presented by the qadi for dissolving the marriage was not based on the woman's claim, i.e., that her consent to the marriage as an adult had not been obtained. One may assume that the qadi suspected, relying on the husband's version, that the woman had agreed to the marriage offered to her by her brother but regretted it later. It may well be that the qadi thought it would be difficult to prove the issue of consent by testimony. The qadi preferred to tackle the issue from another angle, relying on the husband's confession, namely that the marriage offer had not used the expressions considered valid for this purpose by the shari a. It is most probable that the qadi's decision did not mainly derive from humanistic considerations of helping a woman who detested her marriage, but rather from strict adherence to the shari a. The qadi's decision represented the shari a supremacy over custom.

An interesting question is whether the qadi's decision finally settled the dispute and whether it was fully implemented. Layish argues that although there are many ways of circumventing the implementation of the shari a, a court decision according a woman her shar i rights has a normative value in a society attuned to tribal custom.(23) It is not clear what the attitude toward this woman was when she returned home with that decision, how her brother, whose authority had been challenged, reacted, and how the surrounding Bedouin society reacted. Perhaps new legal problems arose; for example, the husband might have demanded the return of the bride price he had paid plus compensation from the wife's relatives, since it had been the wife and not he who had been responsible for the annulment of the contract. The wife might have demanded compensation from the husband for the expected devaluation of her bride price in case of future marriage, since she had lost her virginity. The document under review does not refer to these possible repercussions.

To conclude, the sedentarization process strengthens the ties of the nomadic Bedouins to orthodox Islam Their growing familiarity with the shari a teaches them how to utilize it whenever customary law does not satisfy their needs. Bedouin women, whose status according to custom is inferior to their status according to the shari a, are thus exposed to the improving social status of townswomen, and therefore one may assume that they will increasingly exploit the services of the shari a courts in order to improve their status in the Bedouin family and society.

I should like to thank Professor A. Layish and Professor F. H. Stewart for their help in the preparation of this paper. (1) The judgment was published in Majallat al-Ahkam al-Shar iyya (Cairo, 1907-1908), 6:280-81. (2) A. Layish, "The Islamization of the Bedouin family in the Judean Desert, as Reflected in the Sijill of the Shari a Court," in he Changing Bedouin, ed. E. Marx and A. Shmueli (New Brunswick, N.J ,1984), 39-40. (3) Na um Shuqayr, Ta rikh Sina (Cairo, 1916), 121-22, 352 355, 358, 363. (4) Islamic law determines that a marriage contract is valid (sahih) only if it meets certain conditions, for example, that the marriage offer by one party and the acceptance of marriage by the other party (ijab wa-qabul) are done by using expressions which testify explicitly to an intention of marriage, that legal witnesses are present while the contract is concluded, that each of the minor spouses has the legal status of having reached the age of discrimination (mumayyiz) and that the wife should not be forbidden in marriage to the man either permanently (through blood relationship) or temporarily (when she is still observing the waiting period after divorce, i.e. idda).

A marriage contract which lacks one of those conditions is considered irregular (fasid) or void (batil). Which defects make a marriage fasid and which batil is decided casuistically, with some controversy on details. Some Hanafi jurists have claimed that if a fasid marriage is consummated, a bride price must be paid to the wife, the wife must keep the waiting period if the marriage is dissolved, and the children born of it are legitimate - all this in contrast with a batil marriage, which has no legal effects. Other Hanafi jurists and the jurists of the three other schools use these two definitions synonymously. The qadi should deny the validity of an irregular or a void contract retroactively (faskh) or dissolve the marriage (tafriq) relying on his own authority, an act which has the practical implication of divorce. See J. Schacht, An Introduction to Islamic Law (Oxford, 1964), 121, 161-63; J. N. D. Anderson, "Invalid and Void Marriages in Hanafi Law," BSOAS 13 (1950): 357-66. (5) Ta rif is a technical procedure verifying the identity of the parties to the lawsuit relying on valid testimony of people who know them. See A. Layish, Divorce in the Libyan Family (Jerusalem and New York, 1991), 2, n. 4. (6) For tafriq, see n. 4. (7) A Muslim who is an adult (baligh) and sane (aqil) commands full legal capacity, i.e., is fully responsible for his acts (mukallaf). A minor girl reaches majority either by declaring that she has menstruated or by reaching the age of 15 lunar years, whichever comes first. The fact that the plaintiff declared that she had been an adult when the contract was concluded had judicial significance. According to the Hanafi school, an adult woman may marry without a marriage guardian (wali). The latter loses his authority to give her in marriage against her free will (wilayat al-ijbar), an authority he has until she achieves majority. If the guardian is interested in giving an adult woman in marriage, he is obliged to obtain her approval in advance by power of attorney (tawkil ), which she accords him, failing which the marriage is considered invalid retroactively. See Schacht, 124, 161-63. (8) The Bantu is a golden coin worth twenty francs. (9) An issue which is dealt with in the shari a is how the wife's consent to the marriage is proved. According to the codification of the law of the Hanafi school by Qadri Pasha, the explicit approval of the woman is not required. If the guardian who is the nearest agnate asks his ward's permission and she is aware of the bridegroom's identity and of the bride price's value, then if she keeps silent, or smiles, or laughs not in order to mock or cries silently, it is considered as though her consent has been given. If, on the other hand, it is a guardian who is not her nearest agnate relative who asks her permission, then her explicit consent or an act which testifies to this consent is required (. . . Ia budda min al-ifsah bil-rida aw min wuqu ma yadullu alayhi minha). If an adult woman is not a virgin (thayyib), her explicit approval is required whether the guardian is her nearest agnatic or other relative. See Muhammad Qadri Pasha, Kitab al-Ahkam al-Shar iyya fi al-Ahwal al-Shakhsiyya ala Madhhab al-Imam Abi Hamfa al-Nucman ed. Uthman Khalifa (Cairo, 1347 H.), 9, art. 53-54. In our case it was not mentioned whether the bride was a virgin and whether her brother was the nearest guardian (it may well be that her father had died), but probably this was the situation. As for tawkil, see n. 7. (10) The consummation of the marriage contract is achieved by intercourse (dukhul), after which all the judicial and financial consequences of the marriage become effective. The same consequences are also due if the spouses have had "valid privacy" (khalwa sahiha), i.e., have been in a situation which technically has enabled them to consummate the marriage without having an additional person in their company. See Schacht, 161. It is worth noting that in our case there was no judicial significance to the husband's claim that "valid privacy" had taken place, because the first part of his claim, concerning the dukhul, was in itself sufficient to bring about all the above-mentioned consequences. (11) F. H. Stewart, "A Court Case Among the Bedouin of Central Sinai," Ha-mizrah He-hadash 32 (1989): 68, n. 3 (in Hebrew); C. Bailey, "Bedouin Weddings in Sinai and the Negev," in Studies in Marriage Customs, ed. I. Ben-Ami and D. Noy (Jerusalem: Folklore Research Center, 1974), 114. (12) J. N. D. Anderson, Islamic Law in Africa (London, 1970), 364. (13) On the pattern of marriage see Bailey, 113-14; Anderson, ibid.; F. H. Stewart, "Tribal Law in the Arab World: A Review of the Literature," IJMES 19 (1987): 476. (14) A. Layish and A. Shmueli, "Custom and Shari a in the Bedouin Family According to Legal Documents from the Judaean Desert," BSOAS 42 (1979): 32-33; Arif al-Arif, al-Qada bayna'l-badw (Jerusalem, 1933), 130. (15) J. L. Burckhardt, Notes on the Bedouins and Wahabys (London, 1831), 1:263-64, 267; Bailey, 114, 124. (16) Burckhardt, 263, 266-67; Bailey, 128, n. 76; Shuqayr, 389-90, 417-18. (17) Stewart, "A Court Case," 68. (18) J, Davis, Libyan Politics: Tribe and Revolution: An Account of the Zuwaya and Their Government (London, 1987), 223. (19) A marriage contract gains its validity, as mentioned above, by the offer (ijab) of one party and acceptance (qabul) by the other party. On the one hand, the Shafi i and Hanbali schools argue that the contract is invalid if the offer has not used one of the explicit expressions of marriage, i.e., nikah or tazwij. On the other hand, the Hanafi school argues, relying on the Qur an and the hadith, that the marriage is valid even if implied expressions have been used, namely expressions which serve to confer immediate ownership, as in sale contracts. See Salah al-Din Zaghu, Al-Qada al-Juz i fi masa il al-Ahwal al-Shakhsiyya lil-Muslimin (Cairo, 1960), 19: waala dhalika fa-yu qad al-zawaj idha kana al-ijab wal-qabul bi-lafz al-nikah aw al-tazwij aw ma wudi a lughatan lil-tamlik fi'l-hal kal-bay wal-shira. See also Anwar al-Amrusi, Almarja' al-Wafi fi Qada al-Ahwal al-Shakhsiyya lil-Muslimin (Cairo, 1963), 116-19. (20) The woman was probably instructed to carry out the waiting period, during which she was not permitted to marry another man. The qadi ordered the husband not to oppose her if she planned to marry another man after the expiration of the waiting period. (21) Layish, "Islamization," 41-43. (22) For additional documents showing the fusion of custom with the shari a, see Mismakhim Mishpatiyyim al ha-Bedwim be-Midbar Yehuda veha-Negev [Legal Documents on the Bedouins in the Judean Desert and the Negev], ed. A. Layish and A. Shmueli (Jerusalem, 1976), 35 [shari a court of Jerusalem, August 4, 1956], 36 [Jaffa, May 19, 1966, case 51/66]. For additional documents showing the rejection of custom while enforcing the shari a, see op. cit., 36 [Acre, April 29, 1965, case 58/65]: Two couples married according to custom in an exchange marriage, with no bride price being paid to either bride. One of the brides demanded in court that her husband marry her according to the shari a but he refused. The qadi therefore ruled that their marriage was invalid, since the contract had been concluded by using ata expressions and not the required zawaj or nikah expressions; 37 [Jaffa, May 18, 1966, case 41/66]; 38 [Acre, March 11, 1956, case 40/56]; 39 [Acre, November 17, 1964, case 177/64]. (23) Layish, "Islamization." 49.
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Author:Shaham, Ron
Publication:The Journal of the American Oriental Society
Date:Apr 1, 1993
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