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The grammars of adjudication

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Zouhair Ghazzal

Chapter 11: The phantom of the victimand the triangle of debt

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They looked. Murderer’s ground. It passed darkly. Shuttered, tenantless, unweeded garden. Whole place gone to hell. Wrongfully condemned. Murder. The murderer’s image in the eyes of the murdered. They love reading about it. Man’s head found in a garden. Her clothing consisted of. How she met her death. Recent outrage. The weapon used. Murderer still at large. Clues. A shoelace. The body to be exhumed. Murder will out. (James Joyce, Ulysses, p.102 of the 1971 Penguin edition.)

Fiction is the perfect crime

  • 1 Probably meaning as soon as they entered the house.
  • 2 Zayn al-Dīn Ibn Nujaym, Rasā’il Ibn Nujaym (Beirut: Dār al-Kutub al-‘Ilmiyya, 1980), 357.

A man rushes out from a house with a knife in his hand, he is covered with blood, moving swiftly, and signs of fear are visible [āhir] [on his face.] People then entered the house immediately at that time, and found a slaughtered human being at the same time [bi-dhalika al-īn]1 who was stained with his own blood. And there was no one in the house except that person who was [leaving and] caught in that situation: he becomes a suspect [yu’khadh bi-hi] since there are visible indications [huwa āhir] [of his culpability.] No one would dare [lā yajtarī aad] claiming that he did not kill [the man in the house], and assume that the dead person slaughtered himself, or some other man [other than the suspected one] killed him, then climbed the wall, and ran away. That is a remote possibility which is not acceptablebecause it was not created by some evidence [dalīl] such as the possibility that the witnesses might have lied.2

1This passage, by a leading Egyptian scholar of the first few decades of Ottoman rule, is striking in how little was required prior to declaring a suspect guilty. In effect, it is fair to say that the suspect was declared guilty instantaneously: the knife, blood, fear, movements, and above all, the presence of a slaughtered body in the vicinity of a suspect running away, were more than enough to move swiftly from the status of suspect to that of culprit. Úāhir, or “the external manifestation” of an “event,” a term repeated twice in the passage, is a key component in the context of crime: evidence and indications of guilt [adilla] must be visible to the eye; and it is the eye of the beholder that discovers the links between the object of crime and the subject who committed it. As in all sharī‘a court hearings, very little room, if at all, was left for direct- or cross-examination since witnesses only gave support to and repeated their party’s statements. But if no homicide investigation did progress much beyond an elementary process of witnessing and accumulation of evidence, it was more because penal law had no interest in the “motive” of the crime as such. In effect, the “motive” came into the picture only through the tool-of-killing. In other words, the suspect was not a subject with obscure motives and passions created by a troubled psyche, but an individual who either committed the crime or not. What therefore pushed for a final decision making were external indications (signs or signifiers): the tool of the crime was one of them; and a knife, as the one in the hand of our suspect, being a sharp metallic object not designed specifically to kill but at least to cut, is one of those objects which, all by itself, could easily inflict guilt upon a suspect (a wooden stick was less reliable for that matter). The same Egyptian jurist, Ibn Nujaym, noted on another occasion, when discussing the anafī “general rules (al-qawā‘id al-kulliya)” that,

  • 3 Zayn ad-Dīn b. Ibrāhīm Ibn Nujaym, al-Ashbāh wal-naā’ir (Damascus: Dār al-Fikr, 1986), 20.

punishment is in relation to the killer’s intent to kill. But they said: since intent [qad] is an internal motive [amr-an bāini-yan], then it is the tool [of killing] that should be considered as [an indication for] motive [uqīmat al-ālat maqāmi-hi]. So that if the culprit killed his victim with an instrument that dismembers the body parts [yufarriqu al-ajzā’], then the killing is looked upon as intentional. But if he killed his victim with something that does not dismember the body parts, it would then be looked upon as quasi-intentional, and, as the great imām [Abū anīfa] stated, there should then be no punishment. As to error [khaa’], it consists at targeting something lawful [mubā: permissible], but a human being was wrongly aimed at instead.3

  • 4 Ibn Nujaym, al-Ashbāh, 14.

2Interestingly, Ibn Nujaym was discussing on that occasion the first of his “general rules,” the one stating that “rewards come only with good intentions [lā thawāb illā bi-l-niyya].”4 Considering that the “general rules” constituted the most ambitious attempt by several generations of jurists up to the Majalla to establish abstract legal rules that would tie up the several branches of anafī fiqh together, from the ‘ibādāt, and mu‘āmalāt, up to torts and crimes, the crime example in the above passage represented a “case” for the more general “rule” regarding niyya. Having first stated that for all branches of anafī practice, niyya was an integral part of any practice, be it a contract, a transaction, or a crime, Ibn Nujaym then argues that when a crime occurs, intent would only be detected from the weapon itself: since the intention behind an action is by definition something hard to know and assess because it is “hidden” and “internal,” the only way to bypass such a difficulty is to associate the act and its meaning with the instrument of the crime: that alone would be enough evidence, and the weapon would become the objective signifier that would establish whether an act was intentional or not.

The tool-of-killing as corpus delicti

  • 5 See supra, Chapter1 on custom.

3Homicides, therefore, rather than forming a category of their own, shared a similar dynamic with property and contract cases dealt with thus far, that is, once we begin to look at homicides as “private torts” whose “compensation” ought to be settled between the various parties, then the similarities with contract become more visible. In fact, once cases are looked upon in terms of their relation to their object (property, contract, succession, crime and tort), and how a case constructs itself around that object, the similarities become even more evident. For one thing, in the Islamic and Ottoman legal systems, the “object” itself was not what was open to investigation: judges did not care much about the current status of a disputed property, or a body found lying in the street, since “evidence” did not come from the object itself (as would be the case in modern scientific research or police investigation) but from the constructed evidence as presented by the disputants, their representatives, and witnesses. Which raises the issue, essential throughout this study, of the relationship between statements and facts, language and reality: if the connection between language and reality is only a modern question of the Aufklärung, what was then the status of language in societies that did not necessarily operate within the dichotomy fiction/reality? A preliminary answer came up upon investigating the linguistic roots of custom:5 since a customary practice, from the fiqh’s point of view, is solely denoted by its linguistic component, language is hence an ideal medium for contracts and obligations provided that each utterance/statement is referred to its “true meaning” (al-ma‘na al-aqīqī)—the metaphorical meaning imposes itself only as a second alternative. Statements therefore only denote—or are rather of interest to the fiqh only in so far as they are limited to—the contractual side of a customary practice. Since contracts, however, are either valid or invalid, contractual statements, in turn, share the same status depending on how and where they were stated (some contracts need to be completed in the presence of a majlis). The validity of contracts, however, rather than opening itself to social and historical contingencies (or “events”) was protected by layers upon layers of traditions; and the only breach here came through customary practices reduced to their linguistic components. Once the latter were integrated within canon law (that is, an “equivalent” legal language was adopted), the circle was closed all over again, and the historical events that made such an integration possible were barely visible in the discourse of the fiqh. A statement therefore related to a field of enunciation, was validated within that field rather than, say, confronted to some “external reality.”

Findings of fact

4All cases dealt with thus far could be described as “typical”: they have nothing unique as such, and, indeed, are very common and randomly chosen among hundreds of other identical cases. Most nineteenth-century court documents easily fall within this predictablecategory: whatever the complexity of the case, chances are that there is nothing unique to all the twists and turns. In fact, by the nineteenth century, if not earlier, cases obeyed to a dozen of specific “formulas,” some as procedural fictions (see Table2-2 supra), so that judges had only to fill in the variables. In other words, there were few “hard cases”—and those usually required a muftī’s fatwa—and judges were not expected to act as mujtahids (even though they were legally permitted to exercise ijtihād): when faced with an unusually difficult situation, judges typically sought a muftī’s opinion.

  • 6 ,By contrast, Cairo, in that respect at least, was much more vibrant, see Rudolph Peters, “Islamic (...)
  • 7 Even though women in principle were not ruled out from committing a crime and hence showing in the (...)

5The few crime cases dealt with in this chapterare, however, altogether different from the other examples in this study. First, they were very rare—so rare that one might think that cities like Beirut and Damascus lived in complete peace.6 In fact, the number of homicide related cases typically varies between zero to two per sijill (comprising on average at least 500 to 600 cases). Second, not a single case prompted an “investigation” from the judge to the extent that one wonders whether anything like an “investigative procedure” did exist at all, and, if anything procedural followed, in which domains was it applied? Third, since investigations were out of question, homicide cases (or others with a minor or major physical damage) were primarily meant to “reconcile” people and collect damages (often in the form of an inheritance) rather than punish the culprits, either by accepting the defendant’s innocence, or if he7 was to be found guilty, the diya’s nature and amount (that is, blood money) had to be evaluated and specified prior to any reconciliation. In other words—and this is the main point of this chapter—the basis of such cases was primarily contractual: that was indeed an unusual form of coming to terms with a murder’s mystery, which by all means did not simply amount to establishing the diya’s value. In effect, and this applies to the Beirut cases in particular, a settlement was reached whereby the plaintiff(s)—that is, the victim’s “kin”—would be acknowledged as the sole legitimate inheritors of the victim’s succession (tarika), in return for the plaintiff(s)’s indirect acknowledgment that the accused (defendant) was indeed innocent.

  • 8 On the Islamic law of homicide in general, see J. N. D. Anderson, “Homicide in Islamic Law,” Bullet (...)
  • 9 This seems to be the case in the Moroccan Sharī‘a courts, see Berque, Essai, 105: “Le cadi n’a à au (...)

6Working with sharī‘a courts crime cases hence turns out to be a different experience,8 but the similarities with the great majority of land and property cases, whose purpose was to bypass a rigid notion of contract, is also striking. In fact, the lack of independent investigation, the way witnesses testified in court, and the overall theatrical (fictitious) ambiance of those cases, makes them quite familiar. The reconciliatory nature of crime cases transforms hearings into short episodes that on average are not much longer than sale or tenancy contracts. An understanding, therefore, of the nature of homicide in the context of sharī‘a courts needs to take account of all those limitations: rarity of cases, their conciseness, the lack of investigation,9 and the fictitious form of the hearings. As in the previous chapters, this study on crime is based on a three-level reading from the fiqh texts, the sharī‘a courts, and the local city councils; and the overall aim is to associate all textualities around a set of premises: 1) Homicides (and more generally crimes) were a private affair: there was no public prosecution office—or a niyāba ‘āmma, as they are referred to today—and a crime—or its repercussions—could receive the mild attention a judge’s court only when one of the victim’s “relatives” filed for a lawsuit. A culprit was not supposed to have a public persona either: the “public” had no power to decide whether a crime was moral or immoral, good or bad; in short, crime stories were not disseminated into society and remained private, and criminals were kept invisible and their stories were not shared in public. 2) Judges were never concerned with punishments but only with the “repercussions” of a crime that became the subject of litigation: generally speaking, either the accused (defendant) had to be cleared, that is, found not guilty, or if he was found guilty, a settlement had to be worked out—usually in the form of an acceptance of a blood-money payment by the killer, or his ‘āqila (“professional milieu,” see below), or the “next of kin” (walī al-dam) of the victim. 3) Since judges never punished, and since an “investigation” was limited at most to sending an “explorer [kashshāf, or mustakshif]” to study the depth, size, and nature of the wound(s) on a victim’s body, it is quite possible then that the only authority that punished was the wālī or a body of associates close to him (the dīwān, for example). Such a possibility is reinforced by the minutes of the Damascus majlis in 1844-45 which adjudicated over a few crime and tort cases and decided on specific punishments; but no thorough “procedures” seem to have been followed. 4) Since crime cases were not processed by means of formal investigative procedures, the guilty or not guilty verdict was solely based on the basic rule of “evidence is on the plaintiff, and oath is on the denier [al-bayyina ‘ala al-mudda‘ī wa-l-yamīn ‘ala man ankara]”; this implied, in practice, that the accused (defendant) took an oath to establish his innocence, and this only in case the plaintiff made a formal request for his opponent to do so, but for reasons that will become evident later, plaintiffs usually refrained from doing so. 5) Many such cases established the innocence of the accused; indeed, it does seem possible—even though such cases were brought up by one of the victim’s “kin”—that the whole ritualized “hearing” was staged so as to bring forth the defendant’s innocence—probably as part of a “deal” between the two parties; moreover, at times, a time lag of several months up to a few years between the alleged crime and the hearing itself marks some cases: that could be an indication that the sole purpose of such hearings was one of honor: we need to keep in mind that the “accused” was not associated with a particular murder the day of the lawsuit, but probably much earlier—he became an “accused” by the relatives of the victim, and, at some point, a common decision was made to clear his name—in court, of course. Finally, 6) what all this amounts to is a process of redemption for the accused—a settlement of honor—so that he was no longer targeted by the victim’s relatives for revenge or blood money, and, in some cases, the plaintiff(s) established themselves as the sole inheritors of the victim’s succession.

  • 10 On the most common concepts of crime and punishment in contemporary western societies, see David Ga (...)

7Even by modern Middle Eastern standards, the nineteenth century looks far away in time and space; this is particularly true of torts and crimes, their social meaning, and the court procedures associated with them. In fact, the majority of legal systems today preoccupy themselves, when confronted with crime, in applying routinely accepted procedures that would help in identifying the criminal, assessing the punishment, and at times collecting damages (even if the alleged criminal openly confessed to his/her crime, all procedures must still be followed). Thus, the nature of the crime, the weapon used, and the damage inflicted on the body of the victim, all matter for a single purpose: to find out the perpetrator in order to determine a “just” punishment. The logic of modern systems would not have been possible had they not been modeled on the fiction of the subject-object paradigm of the natural sciences and their cognitive assumptions. There is an object to be known—the crime—committed by a social actor; those investigating a crime are also in turn actors who, like scientists researching in a laboratory, apply objective methods in seeking the truth about the object to be known. Thus, a fundamental cognitive assumption consists in positing the crime as an “object” to be known, that is, as an entity “outside” the subject, and knowledge thereof of that object would be constructed independently of normative validity claims: in other words, whoever the investigative subject is, knowledge of the object ought to be independent of the knowing subject.10

The body, its parts, and their value

  • 11 For a survey of sharī‘a penal law, albeit one that is flawed in terms of its historical evolution, (...)

8To understand the essence of crime in the sharī‘a courts, a very different fiction needs to be imagined—both in its cognitive and normative values—from what we are accustomed to.11 We have to imagine a system whose truth value was not based on a subject-object paradigm; hence a “crime” did not constitute an “object” open for inquiry; and finding out the criminal was not a major obsession; indeed, the system was more concerned in assessing damages in terms of the normative expectations of the parties involved; which left the latter, if they wished to do so, to retaliate on their own, or to seek peace, or else request blood money. Since the anafī tradition neither operates within a precise concept of penal law, nor does it separate between offences committed against a person’s body and those against a property—both would be classified as “usurpation (ghab)”—the body itself, as long as the soul (nafs) has remained unharmed, metamorphoses into an object for compensation. Each part of the body, therefore, has a “price,” that is, is subject to damage assessment, and as such legally achieves the status of māl mutaqawwam, a tangible object whose exchange is legally protected. In a classical case of property usurpation, the usurper must return that property to its owner. This is why when it is a question of malicious damage only, such as theft, anafīs request restituting the loss, but without penalty: it falls under usurpation. In the case of a body, however, since the damaged part cannot be returned, an equivalent māl must be returned to the victim. In anafī literature, the bulk of the chapters on penalties, delicts, usurpation, and punishment, address mostly the issue of compensation: its value, and by whom and to whom it should be paid.

9Strangely, once the crime in its totality ceases to be an object of investigation with the purpose of finding out the perpetrator and the motives behind the act, the legal literature becomes overburdened with the smallest possible details over the nature of the weapon used in the act of aggression, or the damages inflicted upon the victim’s body, or who among the “relatives” should enjoy the right to retaliate, or else to receive the corresponding blood money. Thus, the weapon itself as an instrument—or rather the use of a specific weapon (whether of a metallic or more malleable substance)—would in itself constitute enough evidence that establishes the motif du crime, or rather the intention of killing, the qad. Similarly, the body is not abstracted from its constitutive parts, that is, perceived in its functionality, but divided into unequal regions with unequal parts and organs so that each part could be assessed differently depending on the specific nature of the damage.

  • 12 In the fiqh, meaning (ma‘na) is the “mental image” associated with an utterance/statement (al-ūra (...)
  • 13 By contrast, men’s breasts were not categorized: could it be because they were perceived as of no s (...)
  • 14 The male organ was referred to as a single organ, as dhakar, literally “male” (still used in modern (...)
  • 15 Ibn ‘Ābidīn, Radd, 6:575.

You should know that there is a second kind of māl [res in commercio] as compensation [badal] for the human body or the meanings [ma‘ānī]12 associated with it, such as blood-money value [māl al-diya]. The [body’s] members are of four parts: [1.] three that are single: the nose, the tongue, and the penis; in addition to the meanings that act singly on the body [afrād fī al-badan]: the brain, the soul, smelling, and tasting; [2.] members in pairs: the eyes, the ears that stick out, the eyebrows, the lips, arms, woman’s breasts,13 the labia [untha-yān],14 and the legs—all [could be subject for compensation for] blood money; one of them, [the eye, is compensated for] half [the blood money] and equivalent to each of the four edges of the eye, so that each edge [shafr: edge of the eyelid] is one-fourth of the blood-money; [other organs should be divided into] ten parts [a‘shār]: the fingers of the hands and those of the legs, so that each one is equivalent to one-tenth of the blood-money.15

  • 16 Ibn ‘Ābidīn, Radd, 6:575.

10Rather than subsume all “damage” under one broad category, Ibn ‘Ābidīn instead assesses the blood money for each categorized organ separately. Besides the broad division of organs into singles and doubles, implying that doubles should always be evaluated in terms of their parts, the remaining organs follow a case-by-case method: that is, each individual organ is evaluated in terms of its function and importance. Thus, in case the nose is damaged, it does make a difference whether the damage is purely aesthetic and hence does not affect the function of smelling, or whether the cutting of the edges (al-mārin) with the nosepiece has damaged the function of smelling: in the former case, only “one blood money” should be paid, while in the latter, it is twice the same amount; the reason being that the victim would have lost all or part of her nose, in addition to the faculty of smelling: these are two different things because “smelling is not in the nose,” but rather “the nose is designed to absorb the smells and transfer them to the brain,”16 so that smelling is associated with a second organ—the brain. Similarly, since the penis combines several functions, the diya has to be assessed accordingly. There are therefore organs designed for one thing—smelling—but whose functionality is linked to another organ, while others share several functions: in both cases, blood money could be doubled or tripled.

Weapon determines intent

  • 17 Ibn ‘Ābidīn, Radd, 6:527.

11In the same way that the body is not perceived in abstraction from its organs (individualized parts) and each organ is in turn assessed differently, similarly, the “weapon” of the crime is not an abstract object since each “weapon” represents for jurists a different set of problems. In fact, and in contradistinction to modern procedures that do not bother with how a person was harmed or killed as the crime’s telos, Muslim jurists had to establish graded scales for the weapon used, the damaged part of the body, and the blood money to be refunded. This is particularly true of “homicide [jināya, pl. jināyāt],” “due to its importance and because of its connection with the souls [nafs, pl. anfus].”17 This in itself is enough to pose jināya as one of the greatest sins, practically within the same category as blasphemy, even though the act of killing as punishment (for example, stoning), which is legal, does not fall within the category of sin.

12In homicides (and more generally, crimes), what the legal system was concerned with was whether the act of killing was premeditated, that is, was the act ‘amd? The notion of ‘amd as premeditation and deliberately planned action is associated with qad, intent(ion), purpose, and design. The purpose is what pushes an individual towards a premeditated act of killing, but since purpose is usually taken to be “subjective” or “hidden [in],” the jurists were more concerned with ‘amd. This does not mean, however, that premeditation is necessarily “objective” or “visible [āhir]”; it is rather the association of premeditation with the weapon used (ālat al-qatl: the machine of killing) that determines whether the act was premeditated or not. In other words, the objective criteria were established by the jurists on the basis of the weapon used: this was enough in itself to determine the “degree” of premeditation in an actor’s action to the point that the internal subjective motivations were of no real concern for the legal system.

  • 18 Broadly speaking, dalīl could be a sign, an indication, a mark, or denotation; in short, it is what (...)
  • 19 Madlūlhas several equivalent terms that all cluster around “meaning”: sense, signification, intent, (...)
  • 20 Ibn ‘Ābidīn, Radd, 6:527.

Premeditation is [identical to] purpose [al-‘amd huwa al-qad] and the association is made only in relation to its evidence [dalīl],18 and the latter is furnished by the killer’s use of his own weapon [ālat-ahu], so that evidence stands out in lieu of what needs to be proved [uqīma al-dalīl maqāma al-madlūl: evidence replaces intent].19 What points to evidence [dalā’il] therefore becomes a legal proof whose knowledge is based on assumptions [al-ma‘ārif al-anniyya al-shar‘iyya]. [Thus, shar‘ī law] makes it plainly clear that punishment [quā] should be applicable even if the witnesses did not mention a premeditated purpose.20

13anafism thus plainly distances itself from intention altogether and from the “subjectivity” of the killer’s motives: no visible interest is manifested towards the motif du crime. Instead, what is looked upon are external signs of premeditation that are directly associated to the weapon of the crime. In fact, those external signs—such as the use of a specific weapon—are enough per se to override testimonies of witnesses that could not determine premeditation with certainty. Hence, unlike other areas (such as contracts and obligations), the distancing is even from what witnesses have to say: it is thought that witnesses are unable to determine for sure whether the alleged criminal act was premeditated or not, and what they effectively saw would at best only describe the crime (Ibn ‘Ābidīn goes as far as to suggest that judges should refrain from asking witnesses whether the crime they witnessed was premeditated or not).

  • 21 Ibn ‘Ābidīn, Radd, 6:527.
  • 22 Michel Foucault, “L’évolution de la notion d’«individu dangereux» dans la psychiatrie légale du xix(...)
  • 23 Ibn ‘Ābidīn, Radd, 6:528.
  • 24 The author of the remaining fragment of al-Kāfī’s manuscript is usually identified as al-ākim al-S (...)
  • 25 Ibn ‘Ābidīn, Radd, 6:570.
  • 26 Ibn ‘Ābidīn, Radd, 6:529.

14If belief in “external signs” was the sole criteria, what did those signs consist of? They consist of, basically, two related matters: the weapon and the substance of which it is made. Actually, and to place things in their right order, substance “precedes” everything else: in other words, the degree of “hardness” of the substance could in itself be enough “evidence” for premeditation. For example, metal is more decisive than, say, a rope, and more malleable substances play a less evidentiary role than harder ones. Since the weapon per se—or rather its substance—constitutes in itself enough evidence to establish premeditation, metal becomes the primary de facto standard in establishing that a ‘amd intent was in the works from the moment the culprit chose his weapon: “a ‘amd implies premeditation for the purpose of killing with a metal such as a sword, a knife, a lance, a dagger, an arrow, and a needle... whether the result was death [halāk] or not.”21 In fact, metal became such a “reliable standard” from the early days of anafī fiqh to the point that Shaybānī did not even see it was necessary for pondering about a wound caused by a metallic object in order to establish that the “aim was killing [wa‘ li-l-qatl].” In other words, if the presence of a wound or its absence does not in itself establish anything decisive, it is because metal has been established as the absolute objective signifier in determining the telos of a crime. Had the fiqh gone the other way round and opted for intent instead of telos, it would have placed judges in the miserable position of waiting for their accused to utter a word explaining why they did what they did—a situation that Michel Foucault described very well for nineteenth-century European homicide trials.22 To be sure, such a shift would have required a different cognitive and normative values, which would have centered on a knowing subject in accordance with a specific (scientific) knowledge of that social and psychic individual. Instead, the construction of objective criteria in anafī literature avoided such tropes as “subjective intent”: the āhir over the in, and the alfā over the ma‘ānī, or the utterances of the disputants, their representatives and witnesses, were all perceived as objective signs within a linguistic system, rather than as speech acts with confusing intentions, and whose aim would be the grasping of an objective reality. But the bracketing of intent, meaning, and a subjectively motivated telos, and the priority accorded to objective signifiers also manifests a desire to forgo processes of linking signs with their contents and meanings. The fiqh was therefore able to bypass such a process, and signs—or signifiers—which acquired a meaning of their own, independently of any historical event, were transformed into absolute evaluative—if not normative—criteria. The case of metal is quite significant not only because it established a reliable criteria, but also by becoming an analogic reference for future technological novelties. Thus, for example, the use of firearms became by analogy to metal enough evidence that killing was indeed the sole purpose: “Killing with a rifle charged with a bullet is an act of ‘amd because it is made of a metallic substance [min jins al-adīd] that wounds, so a punishment should be set accordingly; but other [jurists], such as aḥḥāwī, were of the opinion that as long as [the rifle] did not produce any wound, then there should be no punishment.”23 And when witnesses were brought to a homicide hearing, “it was stated in [Itqānī’s?] Shar al-kāfī24 that witnesses should not be asked whether [the victim] died from this [weapon] or not; the same applies when they testify that he was hit with a sword prior to dying, even if no mention was explicitly made that the act was ‘amd because the latter is the intention inside one’s heart [al-qad bi-l-qalb], and this is taken as unreliable [lā yūqaf ‘alay-hi] because it is part of the in; but [the ‘amd] is known from its own sign [dalīl], namely hitting [someone] usually with a deadly weapon. But it remains safer [awa] if they witness that [the victim] was killed on purpose [with a deadly weapon] and that he effectively died [as a result of this aggression].”25 In other words, since the use of a deadly metallic weapon is enough per se to establish the culprit’s guilt, there is no need to push the witnesses further with additional questions to pull the last words from them on the cause of the death: Was it specifically caused by that same weapon? Or was the weapon and the way the victim was hit enough in themselves to provoke a premature death? Even though it was considered “safer” that witnesses were asked and did reply to such questions, judges should refrain from doing so on their behalf: no one knows what witnesses might end up confessing, hence provoking further confusion in the hearings. Such a limitation imposed upon the witnesses either in terms of questioning or utterances should be associated with the general rule on witnessing: namely, that the purpose of witnessing was to repeat and confirm what one “party” had already claimed against the other party; hence, witnesses’ utterances were to be limited at all cost. In other words, by means of valid normative rules, the system attempted to marginalize the facticity of unpredictablelinguistic communications. In the case of criminal hearings, the rule that established that the use of a metallic weapon implied premeditation, was to take precedence over confusing if not contradictory facts, and hence assimilate any factually linguistic element that might have contradicted the normatively accepted rule. On the other hand, and due to the seriousness of a premediated killing, and because it was as great a sin as illicit sex, theft, and ribā, and as serious as blasphemy against God,26 there were special rules to be applied only to homicide witnessing.

  • 27 “You should know (i‘lam),” like “I say (aqūlu),” usually stands for Ibn ‘Ābidīn’s own opinion on a (...)
  • 28 This is when the victim was not deliberately killed: the culprit intended to hit his victim but not (...)
  • 29 That is, it should be accepted like any other first-hand testimony.
  • 30 Ibn ‘Ābidīn, Radd, 6:568. It is not clear what ahur stands for since the plural of āhir is āhir.

You should know27 that the testimony of women, in an act of unintended killing [al-qatl al-khaa’],28 and in a killing that does not necessitate punishment [qawad], is accepted [in equality] with that of men. And the same applies to a testimony based on another testimony,29 or when a judge reports to a colleague, because the purpose [of such litigations] is the [acquisition] of māl. And if someone witnesses with justice against someone else for committing a killing, the [alleged] culprit should be imprisoned; but if [the latter] comes with a witness [that proves his innocence,] he should then be set free. The same also applies whenever a virtuous witness [shāhid mastūr] [provides evidence] to a premeditated killing: [the accused] should be imprisoned unless the justice of all witnesses [‘adālat al-shuhūd] proves otherwise; and the same applies to errors on visible matters [khaa’ ‘ala al-ahur].30

  • 31 Ibn ‘Ābidīn, Radd, 6:558.

15When it came to homicide, and in particular a problematic—non-intentional—killing (one associated with a shubha), the process of witnessing was altogether more relaxed: men and women’s testimonies were accepted on an equal basis, proxy testimonies were also accepted, and judges were requested to seriously take into account what one of their colleagues transmitted to them in writing. Two major reasons stood behind this kind of relaxation: 1) a non-intentional (false) killing was established by confirming that the accused did not use a weapon with an intention to kill, simply because it was not designed for that kind of action in mind; and 2) once the accused was cleared from any intentional wrongdoing, damage had to be assessed by the court and a compensation was to be paid to whom the damage was inflicted upon: in other words, māl was to be exchanged for the damaged organ(s), or the “edges [arāf]” as they are referred to in the legal texts, in contradistinction to the “soul [al-nafs]” whose destruction ought to be reprimanded with the most severe punishment. Thus, the important point here, is that “the body’s parts fall within the domain of exchangeable things [al-arāf fī ukm al-amwāl].”31

Value of the body and its parts

16anafīs believe that body damage could be assessed as māl, that is, it achieves the status of a commodity that could be exchanged for another commodity. More precisely, the damaged part(s) of the body, or the body as a whole (in case of homicide), could achieve the legal status of māl mutaqawwam if—and only if—the “relatives” of the injured party agree for a peaceful settlement with the culprit (or his ‘āqila). What needs to be therefore analyzed is the logic of the process that ends up “equating” a damaged part of the body with an exchangeable thing (māl). The following stands as the general assumptions of the penal system: 1) a person who has intentionally inflicted damage—either total or partial—on another body should be subject to punishment; 2) if the victim died, the punishment could be transferred to the victim’s “kin” who would benefit from a legal right of retaliation; and 3) the next-of-kin could seek a peaceful settlement with the culprit or his ‘āqila (the “professional milieu”) and request a māl retribution.

17As noted earlier, the damage inflicted upon a person’s body could either be total—that is, destroying an individual’s most precious entity, the “soul [nafs]”—or partial, damaging part(s) of the body’s organs—or the “edges [al-arāf],” as referred to in the fiqh (that image perceives the nafs as the center, while the organs are edges). Such a damage is of course the result of a fully premeditated action (we do not hit someone on the head with a sharp weapon without being conscious of the consequences of such an act), but jurists had to tackle the issue of whether the killing of a person necessarily implied premeditation, and the answer was obviously “not necessarily.” In fact, anafī practice created the category of “quasi-mistake [shibh al-khaa’]”; and since the use of a specific weapon—in particular metallic ones—was enough evidence in itself to establish premeditation (‘amd), it was safe for a judge to conclude that the used weapon was, so to speak, the “wrong one” because the intention was only to harm rather than kill, and the victim died “by mistake.” Thus, the notion of “quasi-mistake,”

  • 32 Ibn ‘Ābidīn, Radd, 6:529.

includes [on the one hand] deliberate intent [al-‘amdiyya] because the actor intended inflicting harm [qaada al-fā‘il ila al-arb], but [on the other hand,] [it is associated with] the implication of a mistake [ma‘na al-khaa’] because, considering that the weapon used was not one of killing [ālat qatl], [the culprit] could not have intended to kill.32

  • 33 Ibn ‘Ābidīn, Radd, 6:530: “quasi-intent is similar to mistake, except when it comes to wrongdoing ((...)

18The weapon therefore not only established deliberate intent but also determined all cases assimilated to mistake or “quasi-intent [shibh al-‘amd].”33 Understandably then the fiqh devoted lots of its energies to those “weapons,” and even in the metallic category of weapons “above all suspicion,” there were obvious pitfalls. For example, needles, like swords and knives, did fall in the category of very harmful weapons which use could lead to death; yet, needles, even though of a metallic nature, could hardly be linked “without any reasonable doubt” to an act of killing (actually, the same doubt should have been extended to knives and swords—a knife could be used, but with no intention to kill; jurists, however, did not look at such weapons suspiciously).

It was noted in the Bazzāziyyah that if someone sticks a needle into someone’s else [body] until he dies, [the offender] should be punished accordingly because the decisive element [al-‘ibra] is the metal. But [the same collection of fatāwā] notes on another occasion that no punishment should be inflicted unless [the needle] was stuck on a mortal spot [al-maqtal: vital part]. And the same applies if [the victim] was bitten.

  • 34 Ibn ‘Ābidīn, Radd, 6:528.

I say: The limitation to the mortal part [al-taqyīd bi-l-maqtal] might have been the result of a convenient compromise [tawfīq-an].34

  • 35 Ibn ‘Ābidīn, Radd, 6:529.

19Be that as it may, a culprit should be punished whether his act was deliberate or not, even though the highest punishments were specifically intended for ‘amd acts. But it is not enough for a killer to ask forgiveness on his own from God or from a religious authority; in fact, forgiveness had to be tied to punishment: “The repentance of a killer is invalid unless he gives himself up for punishment [al-qawad-un], and it is called qawad because the offender is led [yaqūdūn al-jānī] with a rope or something else.”35 Ibn ‘Ābidīn, however, fails to mention the exact nature of punishment (incarceration, public ceremony, etc.) and whether the punishment of serious offenders should be publicly performed, or whether the state and/or “local authorities” should assume responsibility for that matter; and if so, what were the exact purposes of incarceration and/or such public ceremonies. After all, there was so much violence delegated to the private parties, that any remotely possible monopoly of violence by the state and its various institutions would have seemed at best implausible.

Kinship settlements

  • 36 Ibn ‘Ābidīn, Radd, 6:551.

20The general trend was obviously in favor of settlements (ul) among the disputants themselves. The “next of kin [walī al-dam or walī al-jināya]” would either forgive the culprit without requesting any māl, or else do so through a blood-money (diya) compensation. But the possibility was also open for the kin’s own retaliation against the assailant. What complicated the matter further was that, unlike contract, symmetrical exchange was pointless; that is, there was no such a thing as “an eye for an eye and a tooth for a tooth”: “There is a consensus among Muslims that the right eye cannot be revenged [tu’khadh] with the left one, nor the left with the right one.”36 In a way perhaps similar to the time lag between offer and acceptance (ījāb wa-qabūl), as if the process was one of gift and counter-gift, and where the ability and willingness to reciprocate cannot “equate” the challenge posed by the act of giving, there is no talion law strictly speaking: that is, punishment (qawad) cannot possibly be “identical” to offense.

  • 37 Ibn ‘Ābidīn, Radd, 6:573.

21This non-symmetry applies in particular to blood money (diya): “the diya in sharī‘a law is the name [associated] with the māl that compensates for the soul [badal li-l-nafs]. [However,] punishment is privileged [quddima al-qiā] because it is in essence [al] to the preservation of life and the souls. It is [therefore] stronger and the diya comes next.”37 The last statement should be read as: the diya comes only as a second alternative to the “kin [ahl]”’s involvement in the process of retaliation. Rather than close the circle of punishment into abstract principles that would “measure” the degree and intensity of a fair punishment, sharī‘a law leaves the actors with several possibilities. Thus, once punishment has been agreed upon, it remains to be seen which of the “kin” should enjoy that privileged right; then those legally chosen ought to decide between retaliating on their own or else opt for a settlement (either privately or in court); and, finally, in case they do so, how should the diya be assessed then (again, that could be either settled privately or in court)?

  • 38 In the contemporary Syrian penal system, the legal authorities claim, on the one hand, the legitima (...)
  • 39 Niklas Luhmann, A Sociological Theory of Law (London-Boston: Routledge & Kegan Paul, 1985), 123: “T (...)

22A fundamental aspect of sharī‘a law therefore was the delegation of the legitimate use of violence to private parties,38 which took two complementary forms: 1) either social groups enjoyed their own jurisdiction in particular when it came to criminal offenses; no arbitration was even needed from the official legal institutions, and this in itself would be enough to explain the very low number of crime cases in the sharī‘a courts; or 2) a limited mediation would be forced upon social groups or individuals whose internal feuds might have required outside arbitration (from the sharī‘a courts, among others); the courts would then leave the disputants with several aternatives, such as a settlement in the form of a diya whose amount would be determined in court. The very limited use of the sharī‘a courts might have originated from individuals dissatisfied with what their kin had to propose, or simply because they had no “kin of value” to rely upon.39 In both cases, however, the legal system would delegate its powers, either fully or partially, to local and kin authorities because it did not rationalize yet into a normative structure of abstract rules (the normative rules in sharī‘a law were accepted as customary practices: that is, on the basis of their matter-of-factness, either as emanating from the Prophet and his companions or from sharī‘a law).

  • 40 Walī al-jināya,literally “the guardian of the crime,” or the one(s) responsible for retaliation, se (...)
  • 41 This last part—jihat al-ul, the party seeking settlement, which in principle could only be the vi (...)
  • 42 Since the diya was by definition a māl, any additional amount of the same kind as the latter would (...)
  • 43 anafīs were concerned that contracts involving money transfers would end up either under or over t (...)
  • 44 Ibn ‘Ābidīn, Radd, 6:529.
  • 45 More specifically, the ‘āqila, see below.

23A fundamental aspect of sharī‘a courts was in restricting within a set of options the strategies of the actors, and, at the same time, delegating all retaliatory powers to those same actors. Thus, in the case of blood money, “the avenger of blood [walī al-jināya]40 has no right to refrain from receiving the diya without the murderer’s consent [riā al-qātil], and that was one of two opinions from Shāfi‘ī; in his other opinion [...] when punishment is a duty in ‘amd cases, it can only be transformed to [the status of] māl from the settling party [jihat al-ul].41 But no settlement would be based on more than the diya from the same species [min jinsihā]42 at the time43 because otherwise [the exchange] will become a ribā.44 Punishment therefore would only metamorphose into a diya with a deliberate intention for settlement—so that either the injured party receives the diya—and this is in itself a sign of settlement—since the murderer or his “kin”45 transferred the requested māl to the victim’s “kin”—or in case the victim’s kin forego the diya altogether, then the murderer’s approval is also needed: this request, strange as it might seem, follows the same logic as that of the diya’s transfer; in the latter, it is a sign of the murderer’s approval for reconciliation, but when no diya is to be paid, the murderer shares the obligation to transmit his desire (or approval) for reconciliation verbally.

Blood-money payments

  • 46 Perpetrator would be more correct since this case is restricted to bodily damage only.
  • 47 Ibn ‘Ābidīn, Radd, 6:530.

24Who should pay the diya? Strange as it might seem, the murderer is in charge of the diya only under specific limited circumstances: “You should know that the māl [to be paid as compensation for a criminal act] of pure ‘amd should be from the māl of the killer46 only when the soul has survived; and from his ‘āqila when the soul was only intended, even by mistake; and from his ‘āqila also in case of quasi-intent on the soul; but the diya should be paid by the killer in case of quasi-intent on anything other than the soul.”47 The options regarding the payment of blood-money and that should take into consideration the nature of the act (intentional or not), whether the soul (brain) or body were the target, and whether the victim survived or not, could all be summarized as follows:

Table 11-1: Homicide categories

act

soul/body

victim

diya (culprit/kin)

intentional

soul or body

survived

culprit pays the diya

intentional

soul or body

died

punishment; diya paid only if next-of-kin waver punishment

quasi-mistake

soul

survived or died

‘āqila

quasi-intent

soul

survived or died

‘āqila

quasi-mistake

body

survived or died

culprit

quasi-intent

body

survived or died

culprit

  • 48 Muammad Rawwās Qala‘hjī, Mu‘jam lughat al-fuqahā’ (Beirut: Dār al-Nafā’is, 1996), 271.

25The culprit thus pays himself the diya under three circumstances: if his act was premeditated, but nevertheless his victim survived; or when under quasi-mistake and quasi-intent situations, the body rather than the soul was targeted. Needless to say, such attenuating situations are looked upon as “of lesser importance” vis-à-vis more “serious” ones such as when the “soul” is directly targeted or when the victim dies as a result of an intentional act. In the latter situations, blood-money should be compensated by the ‘āqila. Broadly speaking, the ‘āqila is the (professional) male blood relatives who are placed responsible for paying the legal fine to the next-of-kin of the victim. In Arabic, the ‘āqila stands as the feminine for ‘āqil, the sage, an adjective for an absent noun, that is, the jamā‘a ‘āqila, the wise group (of the culprit). A tradition claims that the brain (‘aql) of the victim is wise (‘āqil) when compensated with its diya, and the culprit’s “group” is wise too, hence the term ‘āqila as something that qualifies the sagacity of that group for having realized that it ought to do something in order to compensate for one of their own’s erratic behavior.48 So who is that “group” associated with the culprit’s ‘āqila? Defined as the ‘aaba (“kin”) of the culprit, or as his ahl, it also shares, as Schacht argued, several historical connotations.

  • 49 Joseph Schacht, An Introduction to Islamic Law (Oxford: Clarendon, 1964), 186.

The ‘ā∆ila consists of those who, as members of the Muslim army, have their names inscribed in the list [dīwān] and receive pay, provided the culprit belongs to them; alternatively, of the male members of his tribe (if their numbers are not sufficient, the nearest related tribes are included); alternatively, of the fellow workers in his craft or his confederates; and the ‘ā∆ila of the client, both in the sense of a manumitted slave and of a convert to Islam, is his patron and the ‘ā∆ila of his patron. This institution has its roots in the pre-Islamic customary law of the Bedouins, where the culprit could be ransomed from retaliation by his tribe, and the inclusion of confederates and of clientship seems to be ancient Arabian too. The concept of ‘ā∆ila was Islamicized by introducing the dīwān which replaces tribal relationship, but the adaptation to urban conditions by introducing the fellow workers in a craft was insufficient, and the whole institution fell into disuse at an early date.49

  • 50 Ibn ‘Ābidīn, Radd, 6:562.

26The ‘āqila institution might well have fallen into disuse but the term was still in use in few nineteenth-century criminal cases—a possible indication that the meaning might have shifted over the centuries but still denoted ahl even in later periods. In short, what the ‘āqila pointed to was the broader professional, confessional, political, military, or familial belongings of the culprit. Thus, if the rule was that “in case of mistake, the diya must be paid by the ‘āqila,50 this was because the “mistake” had to be assumed by the “group” as a whole, but when it came to pure intent as such, the murderer was to be responsible on his own for the murder he committed since the death penalty might turn out an option.

27Thus, crime was never reduced to an act between two individuals, the murderer and his victim; and was “extended” to the larger group: the culprit’s ‘āqila and the victim’s “kin [qarāba].” But if nineteenth-century manuals did not seem much enthusiastic in defining the ‘āqila, they did, however, devote a lot of attention to delimit the “beneficiaries” of a victim’s “kin,” that is, between “kin [qarāba]” as such and what was “foreign [ajnabī]” to it.

  • 51 In Arabic: li-anna sabab al-qarāba li-l-maqtūl wa huwa mimmā lā yatajazza. Yatajazza is here the mo (...)
  • 52 The only other alternative, since adoption is prohibited in Islam, is that the child had the victim (...)

What is meant by an outsider [ajnabī: foreigner] is someone who is a partner in the ownership of property but not associated with kin [sharīk-an fī al-milk lā fī al-qarāba]. So if a man was killed who had a senior paternal cousin from one aunt and another junior maternal cousin from another aunt, and both are foreigners, the right of retaliation [qiā: punishment] befalls on the senior one because the reason for enforcing kinship is [retaliation] on behalf of the murdered person and [those two things, the victim and his kin] cannot be dissociated from one another.51 The same applies when the victim leaves behind a wife and a small child who is not hers,52 the right of retaliation befalls on the wife because what is meant by kinship is the inclusion of marriage.

  • 53 ash-Shiblī (Abū ‘Abdallah Muammad) (d. 769/1367): Damascene anafī jurist who was appointed as jud (...)

The scholar Ibn ash-Shiblī53 drafted a fatwā in his famous Fatāwā concerning a woman who was killed intentionally and left behind a husband and a small boy from someone else [that is, from her ex-husband]; and his reply was that the right of retaliation is for the husband until the boy reaches the age of maturity.

  • 54 Ibn ‘Ābidīn, Radd, 6:540.

When the killer gets killed justly or unjustly, his punishment is given up and [the victim’s kin should forego their right to collect any] māl; and the same applies if [the killer] dies, he would have then concluded the punishment that was the obligation of a group [al-wājib li-jamā‘a].54

28Besides the distinction between the “kin” as such and its “foreign” elements, it is not clear what the rules were behind each category. Thus, the first definition of an “outsider”—or what comes close to a definition—is someone who has a “partnership in property [sharīk-an fi-l-milk],” rather than is kin related; and the example provided is that of two cousins, both children of aunts to the victim (a father’s sister and a mother’s sister); the two cousins are both outsiders in respect to the victim simply because of the way they “connect” to the latter: both are sons of women who are either considered from outside the father’s kin—the mother’s sister—or in the other case—the father’s sister—the woman could have been married to someone outside the group. Let us then assume that a “foreigner” in this case is a descendant “related” to the victim either patrimonially or matrimonially, a “belonging” that might grant him inheritance privileges; but, since from his father’s side there is no guarantee that he is from the same family as the victim, he is not allowed any retaliatory privileges. Furthermore, such privileges cannot be “shared” among several kin members and only a senior cousin is granted retaliatory rights. Thus, outsiders were granted, faute de mieux, such rights: that indirectly extended the narrow kin of agnatic relations to wider possibilities when no other alternative was possible. In other words, the “pure” blood relationships of kin have precedence over the other more “suspicious” kin, based on non-agnatic relations; but all this was a question of precedence rather than that of exclusion. Thus, in the second example, the small child ought to have had precedence over the wife since he was his father’s own descendant, but “kin” favors marital life thus granting the wife a priority in action: in other words, kin does not provide priority in agnatic relations anymore since matrimony takes precedence. In the third example, the victimized woman left behind a husband and a small boy from an ex-husband. Following the previous example, it would be safe to say that the priority is for the husband since matrimony is privileged; but that privilege turns out to be temporary—until the boy achieves the age of maturity, which brings the third example closer to the first: the “next of kin” is a direct descendant, in this case, of the victim’s own son. In short, the “next of kin” ought to be preferably a direct descendant, not necessarily agnatic, and in case no such beneficiary exists, the duty is transferred to someone else such as a cousin or spouse. But all such rules turn out to be uncertain since some jurists gave precedence, say, to matrimony over direct descent.

29The system thus does not proceed in abstracting from the specific to the general but works entirely in terms of hierarchies and gradations. Hierarchies are created all along: metallic versus non-metallic weapons, the soul versus the parts, kin versus foreign elements, etc.; there are even further gradations within each category, while each gradation was subject, at times, to different juristic opinions. Avoiding abstractions, the system proceeds on a case-by-case basis hoping to leave no room for the unpredictable; but the method of mapping a territory while creating as many opinions as possible opens the door to mujtahids to create additional opinions based on analogy and takhrīj.

30Gradations also determined the essence of the system when it came to the intensity of the punishments and to those eligible to be punished. Such a logic stems from two broad principles: the soul and the body parts, on the one hand, and a general typology among different categories of individuals, on the other: gender, race, free persons versus slaves, etc. Such divisions, hierarchies, and gradations operated within the logic of customary practices rather than, say, from a purely juristic standpoint: in other words, they reflect a process of social and political divisions within society that would not be overcome either by a “civil rights” society or by a democratic and legal state. If genealogic affiliations mattered so much in crime, as it did in wills and successions, it was because “society” was genealogically construed. Juristic typologies were also genealogical tools that established affiliations within the fiqh (see Chapter1 supra).

  • 55 Ibn ‘Ābidīn, Radd, 6:551. The eye was described as the “machine of seeing (āal-ru’ya).”
  • 56 Ibn ‘Ābidīn, Radd, 6:555.

31Thus, when it came to punishment, the system operated, in regard to the notion of kin, in terms of a general matter-of-factness: this implied, first, an ad hoc approval of many of the founders’ views and those favored in the anafī juristic typology; then, second, accepting on an equally similar basis gender, race, and religion, etc., divisions that occupied the social fabric. It was thus reported (and hence approved) by late jurists that Abū Yūsuf stated that “there should absolutely be no punishment for the gouged out squint-eye,”55 and the same founder also stated that “there should be no punishment when [only] part of the tongue was destroyed.”56 Even though the logic here might be that an already “damaged” organ would not be worth a punishment, or that when part of an organ was destroyed, and as long as it would keep up with its natural functions, it would not be worth a punishment either; this avoids, however, the problem of the offender’s act and the fact that the intention might have been to cause bodily harm. But since the system seldom deals with offenders as such and delegates the responsibility of punishment to the next of kin, it might have been perceived that such offending actions are not worth the punishment in the first place.

  • 57 Ibn ‘Ābidīn, Radd, 6:553.

32When it came to gender, social inequality between men and women has its penal equivalent: “There is no punishment between a man and a woman when the soul was not [the target].”57 But if the killing of a soul forces the law to equate between people, the damaging of specific parts does not:

  • 58 Ibn ‘Ābidīn, Radd, 6:554.

Zay‘alī said: To us, the edges [arāf] follow the same path as the amwāl because like the amwāl they protect the souls [wiqāya li-l-anfus]. But there is no equivalency [mumāthala] between the male and female body parts [arāf: edges] because of differences between them in value [li-l-tafāwut bayna-hu-mā fī-l-qīma] based on the legislator’s evaluation; nor between a free person and a slave, nor between two slaves because of a difference in value; and if they are equated in value [tasāwa-yā fī-l-qīma], it would be the outcome of conjecture and assumption [al-azar wa-l-ann] rather than conviction [yaqīn]. [Equivalency] created uncertainty [shubha] so that punishment was avoided, in contradistinction to the parts of two free persons because, based on sharī‘a law, their equality [istiwā’-ihimā] is certain; and also in contradistinction to the souls because their related punishment has to do with killing the spirit, and there is no distinction [tafāwut] in this.58

33Thus, the process for evaluating body parts divides them first between single and double, then assesses them in terms of use and functionality, but even functionality could be in one organ and affect another (smelling is linked to the nose but is finally processed in the brain: that’s enough to double the diya). In short, a set of hierarchies works wonderfully for the free male body, and the above prescriptions, between men and women, and between free persons and slaves, add further to the already existing typologies. In sharī‘a law therefore, crime and punishment do not obey general abstract rules: if anything, from the weapon used, up to punishment and bodily damage, the texts spend an enormous effort trying to create categories and sub-categories.

The perfect crime

34Documents covering criminal cases are very rare and very short. In fact, in a milieu fully dominated by land cases and contractual settlements, crimes and torts look by contrast insignificant. Their rarity and shortness is partly explained in the shortcomings of sharī‘a law regarding procedures, constrained in practice, as most cases below show, to privately crafted contractual settlements. Moreover, the lack of any penal code as such had pushed the Ottoman authorities, as early as the second half of the sixteenth century, to several regional qānūnnāme. Sharī‘a law was also ambiguous regarding any public notion of crime: a damage inflicted upon a body was looked upon in a way similar to a usurpation over a property, thus rendering any idea of crime as a “public concern” rather limited, if not totally devoid of any meaning. That led to a system divided in two jurisdictions. Whenever collecting damages came to be the main issue that could be peacefully worked out between the parties, the sharī‘a courts did set the standards. On the other hand, the regional councils, which were under the jurisdiction of the wālī, took hold of crime and tort cases for which no peaceful settlement was possible. The councils typically adjudicated based on the “secular” qānūnnāme rather than sharī‘a law, and the rulings generally implied punishing the culprit rather than assessing damages and working out compensations. Those councils, which had boards composed of local urban notables, were primarily erected for legal purposes, and the choice of non-professional but well known notables was the only way to avoid the crucial issue of the legitimacy of the adjudicative process (see Chapter9 supra). The fiqh manuals, however, remained silent both on that parallel process of adjudication supervised by the governor and regional authorities, on the one hand, and the compensation procedures held in the sharī‘a courts, which were mostly nothing but fictitious litigations, on the other. Having therefore assumed the existence of that parallel adjudication, on the one hand, and the practice of pre-trial arrangements between parties in order to collect damages in the most convenient way, on the other, sharī‘a law did not evolve much throughout the Ottoman period and derived most of its categories from its traditional assortment of juristic opinions. At best, a muftī’s fatwā was helpful in difficult cases, in particular those where the tool-of-killing proved of no help in solving le mystère du crime.

  • 59 The crime of lèse-majesté will be explicitly formulated only in the 1858 penal qānūnnāme, which, in (...)

35The legal system as a whole was very much motivated by a strong desire to limit, as much as possible, all elements that would throw a case into the unpredictable. With crime in particular, the most common question that faces a modern criminal inquiry is that of the (subjective) motives of a killer (even though in his groundbreaking Common Law, Justice Oliver Wendell Holmes mocked the illusion of the “subjective” altogether): motive establishes whether an act was premeditated, accidental, involuntary homicide, or else the outcome of unusual circumstances; it also questions whether the killer is, according to a popular medical terminology, “normal,” “mentally retarded,” “unstable” or “psychotic.” All inquiry into motive and intent leads to a ruling that determines the intensity of punishment. Moreover, as an outcome of the industrial revolution and the heavy use of machinery in manufactures, tort law had to account for notions of “accident” and “mistake” that held someone “responsible” for a labor damage. In the same way that a crime in modern law is usually looked upon as a disturbance against “public order,” an irresponsible behavior, say, in a labor environment is also a public misbehavior that the offender would be accountablefor. The point here is that damage assessment is relative to what the offender has committed against the public order rather than simply satisfying a private party’s desire for compensation. Thus when the Ottoman Majalla, reiterating notions from anafī practice, states that “damage cannot be compensated with another damage [al-arar lā-yuzāl bi-mithlihi],” besides establishing the legal difficulties in assessing the “value” of damage and its “equivalent” (as māl mutaqawwam), the reasoning is still in terms of how private parties should be liable to compensation, in case they wish to do so. In short, Islamic penal systems, up to the Ottomans, did not think of damage afflicted to an individual as one harming the “public order.” Hence the limitation of criminal court cases to contractual settlements that were for the most part the outcome of pre-trial arrangements. But even the regional councils, more concerned with punishment than the regular courts, looked at crimes and torts more as disruptions of the social order than as “errors” committed against any “public order.”59 In other words, crime and punishment remained for the most part symbolic—combining divine law, sultanic prestige, customary practices, and moral ordinances—rather than “disciplinary,” that is, concerned with techniques that would have integrated individuals and groups into a civil society.

36It is as if sharī‘a law created a system of punishment and retribution that precisely avoids the (subjective) motivations of a perpetrator. (By contrast, western systems assume that ontological division between subject and object, individual and society, private and public, all of which have become standard in modern Middle Eastern codes—but do they have the same connotations as their western equivalents from which they are derived?) Such a step—a recognition that motives are fundamental—would have placed the system within a framework that would have been impossible to manage simply because its cognitive, political, and legal values favor an objective line of questioning that looks for external signs (signifiers) as elements of truth. Thus, the complexities of a criminal hearing had to be reduced to the instrumentality of the weapon as the most fundamental element of truth: that is, intent is objectively determined. In identifying motive with the weapon—a specific (metallic, for the most part) weapon implies premeditated killing—sharī‘a law already took off the most essential and controversial aspect of a homicide hearing. Then, as a second step, once subjective motivation was out of the picture, the criteria for punishment was to be found into something marginal to motive: in the body organs themselves and the way they were classified according to use, functionality, or other genealogical criteria.

Pre-trial settlements

37So what did a nineteenth-century criminal case contain? Not much. Either a plaintiff accused his defendant of a crime he had no evidence for—such cases came rapidly to an end and were as short as the acknowledgment of a contract—or else “some” evidence was provided but whose status was problematic: witnesses, for example, heard something but did not see it—the kind of evidence that only a muftī’s fatwā would find a solution to; such cases, because of the fatwā’s matter-of-factness, were also very brief. Other cases argued about diyas in terms of their amount, value, and conditions of delivery. That, however, was not enough to create long and complex cases because court procedures made the assessment of diyas even simpler than estimating the value of a defunct’s properties and belongings.

38By far, the most common criminal hearings belonged to the first category: plaintiffs without evidence, and defendants that denied all allegations either on oath or even, because no explicit request was made, without oath. Such strategies intended to vindicate a defendant’s name from any wrongdoing by creating a fictitious litigation—sometimes years after the alleged crime—through a formula that required the complacency of both parties; some cases, however, were a bit stronger in that they pushed for an acknowledgment of the plaintiff(s) right over their kin-victim’s succession.

  • 60 Beirut sharī‘a courts, unnumbered register and pages, 6 afar 1276 (4 September 1859). (Notice the (...)

[C 11-1] Yūsuf the son of ‘Alī and his wife ‘Āysha, the daughter of ‘Abdullah, from the village of Bakh‘ūn in qaā’ al-Âinniyyeh, were both present at the honorable shar‘ī majlis that held its session in the province of Sidon. They claimed that Shaykh Milim b. Ra‘d from the village of Sīr, in the same qaā’ above, had, on Saturday 20 Dhul-Qa‘da 1266 [27 September 1850], premeditatively [‘amd-an] killed their son asan by shooting him with a bullet and wounding him in his chest; he died from the repercussions of his wound. Since the parents of the deceased are his only inheritors, they requested that the defendant pays his compensation [that is, the diya]. When questioned about the complaint, the defendant denied that he murdered the plaintiffs’ son asan and he requested from them to prove their allegations. They replied that they are unable to furnish the required evidence. They were then asked whether they wished the defendant to take oath three times in the name of God the Almighty. But since they did not solicit him to do so, the plaintiffs were forbidden to complain against the defendant without any substantial evidence.60

  • 61 On the notion of punctum in “reading” photographs as texts, see Roland Barthes, La chambre claire. (...)
  • 62 Inheritance would have been less obvious had the victim been married with children: in that case, h (...)

39This type of case was by far the most common, even though the time lag between the alleged crime and the hearing itself—almost nine years—was indeed unusual, as it usually varies between several months up to a year or two at most. Considering the extreme rarity of crime cases in the nineteenth century, homicide hearings seem to have been even much more tightly controlled than those related to land or contractual settlements in general. Yet, the extreme brevity of the document forces us to question directly its points of silence and its ambiguities, and, above all, the long delay—nine years—between the date of the hearing and that of the alleged crime. This long delay, which repeats itself with slightly different time frameworks in other similar documents, could be looked upon as the punctum of the document-as-text.61 First, inheritance in this case, unlike some cases below, was only part of the issue. The text in fact mentions that “the parents of the deceased are his only inheritors,” a statement that came without any legal evidence, in the form, say, of a confirmation from a judge or muftī, probably because the plaintiffs’ right of inheritance was more or less well established.62 Still, even though inheritance was neither the main nor the only issue, the text confirmed it indirectly: in declaring the accused’s innocence, the judge also made the point, en passant, that the victim’s parents were his sole inheritors. Could it be that such a confirmation was necessary to proceed with the inheritance? Or did the victim leave a succession that had problems? Be that as it may, the case does suggest that it was not only about inheritance, and, considering that in nine years the plaintiffs could not accumulate any evidence against their accused, their case was not about the diya either since they expected no compensation whatsoever. The other alternative, however, was that the passing of the inheritance to the parents was indeed a form of compensation, a quid pro quo between plaintiffs and defendant. Second, considering that the two plaintiffs decided to present their case in court nine years later, with no evidence in their hands, and without even requesting from the accused to take oath, suggests only one thing: that the purpose of this fictitious litigation was precisely not to accuse the defendant of any crime but rather to clear his name of any wrongdoing. In fact, what is known for certain is that the defendant was only nominally an “accused,” and the lawsuit might well have been intended as a redemptive process. My assumption is that the plaintiffs received their son’s inheritance in return—otherwise, why bother and mention it in the judge’s ruling?

40Since the apparatus of justice did delegate considerable powers to the parties in criminal litigations, it was left to the victim’s kin to decide who was the murderer, then opt for the right punishment, and, if the diya-as-settlement was chosen, its “price” had to be worked out between the two parties. The “next of kin,” who often posed themselves as the sole legitimate inheritors of the victims (even though the two categories of walī al-damm and wārith were legally very different, one involving property rights, while the former assumed blood relationships), could have requested—except for associating a murderer with the victim’s body—at any moment, the mediation of the sharī‘a courts. Thus, choosing or avoiding the courts was part of the strategies deployed by the social actors. In the above case, the “accused” might have had this title imposed by the other party for as long as nine years; he might also have been summoned to compensate in terms of blood money; but, for reasons impossible to guess, the final settlement came as a gesture in court to clear his name—an indication that disputants use the legitimacy of the court system and its prestige to push for an optimum settlement on their own terms and conditions. The other alternative—courts imposing their normative rules on the litigants—seems less likely due to the delegation of powers.

  • 63 While the plaintiffs could have been either men and/or women, the defendants were always male. Thus (...)

41Even though all the Beirut cases below present on their own distinct variations from the first one above, they nevertheless all share common features: 1) the plaintiff(s) decided on their own who the accused was, and they were not helped in this task by any official institution; 2) the plaintiff(s) often introduced himself (themselves) as the (or one of the) inheritor(s) of the victim’s succession; 3) it should therefore be determined whether the accused shared any responsibility in the crime; in case he63 did, the blood money had to be divided among the plaintiff(s)-inheritor(s), that is, it was to become an integral part of the tarika; 4) because the plaintiff(s) litigated with no evidence, the common procedure was for the accused to take oath and deny (al-yamīn ‘ala man ankara); however, many were not even summoned to take oath by the plaintiff(s)—since this was his/her/their own exclusive right to make such a request—and were thus cleared on the basis that no evidence was furnished and no one requested them to take oath; finally, 5) since it is highly improbable that the same weak point repeats itself from one case to another—namely, that plaintiffs accuse others of manslaughter with no evidence—the “litigation” therefore sounds from beginning to end purely fictitious—a procedure to settle on friendly terms rather than accuse anyone with wrongdoing. My assumptions regarding all homicide procedural fictions are therefore based on two main presuppositions: 1) that a crime did in fact occur—even though no independent investigation was ever pursued to confirm or disprove the alleged homicide; and 2) that the defendant must have been related to the alleged crime in one way or another. Again, those are only assumptions, but which make more sense than proposing that a crime did not occur in most cases, or that the accusations were purely fabricated; or, worse, naively assume that all those litigations were “genuine.” Thus, within this perspective, not taking oath—with the plaintiffs’ approval—was a device that prevented defendants from lying under oath, in case they did commit what they were accused of, as we have been assuming.

42What such procedural fictions probably reveal are some of the most common rules of evidence among anafīs. Those are known as the “general rules” (al-qawā‘id al-kulliya) that would be applied to both rituals and pecuniary transactions. Even though their existence probably goes back to the early stages of anafism, they nevertheless received their earliest mature formulation in Ibn Nujaym’s Ashbāh, which was dormant for most of the Ottoman period, but then the importance of such rules and their practical side was rediscovered in the Majalla (1877) as the drafters of the first Ottoman civil code gave them a preliminary treatment by assigning the first one-hundred articles to those general rules.

  • 64 Regrettably the Majalla does not organize its material into rules and sub-rules, even though the or (...)

43The fourth rule of the Majalla, based on Ibn Nujaym’s Ashbāh, states that “With doubt certitude does not fade (al-yaqīn lā yazūl bi-l-shakk).” From that general rule other sub-rules64 follow such as the fifth rule: “The remaining of a thing in the state in which it was found is the presumption (al-al baqā’ mā kān ‘ala mā kān).” In effect, both rules give priority to the “origin” (al) of a “situation” (or “event”), so that as long as no counter-evidence has been offered to disprove that original state, it would then remain as it was (see Table1-3 supra). Assume, for example, that a debtor claims to have refunded his creditor, while the latter denied so. Two possibilities then emerge: 1) either the borrower cannot furnish evidence, and hence the lender takes oath and the judge rules in his favor; or else 2) the debtor substantiates his claim and the judge rules in his favor. In either case, the original presumption holds true as long as no counter-evidence has been furnished, while the one who denies takes oath as evidence.

44The homicide cases present us with a similar situation. 1) The plaintiff claims that the defendant killed the victim; 2) the defendant denies and requests the plaintiff to furnish evidence; 3) plaintiff is unable to do so; 4) the defendant could take oath as evidence of his denial, but the plaintiff does not push him to do so; finally, 5) the judge rules in favor of the defendant since the original situation—namely, the presumption of innocence for the defendant—is what remains valid. There are several other sub-rules that go side by side with the general rule on evidence, such as “When a thing is proved for one time, judgment will be given in favor of its continuance until there is proof to the contrary (mā thabuta bi-zamān yukam bi-baqā’ih mā lam yūjad dalīl ‘ala khilāfeh)” (Majalla, 10), or, “As to attributes which may exist or not, the presumption, which there is, is that they do not exist (al-al fi-l-umūr al-‘āria al-‘adam)” (Majalla, 9), both of which look upon allegations, such as a crime or a debt, as “contingent matters (umūr ‘āria),” which unless validated, do not exist.

45To be sure, and from a modern perspective, such statements do seem strange. We know for certain that a crime did take place, and the evidence is obviously the body of the victim, so what does it mean to say that the crime did not occur? The reason for such a confusion is that we tend to think of a “crime” as an objective fact whose “causes” must be sought “independently” of the social actors that might have been involved in its making. That’s the dispassionate attitude towards all events in line with the epistemology of the enlightenment which works under the fiction of a knowing subject and an object to be known. In Ottoman societies, by contrast, a crime only exists in the eyes of the public authorities (and the courts were among them) only if a private party files suit in court. In such a case, evidence was not to be objectified into some kind of process where “truth” is to be sought dispassionately. It is rather to be found in any interplay between plaintiff and defendant, so that their confrontation through a hearing was what determined guilt or innocence. In short, crime was transformed into a private tort while guilt implied compensating the victim’s kin.

  • 65 Names and places of residence included.

[C 11-2] Muammad b. Ibrāhim ‘Abbās from the locality [qaā’] of Tibnīn introduced himself to the shar‘ī majlis meeting in the liwā’ of Beirut, as representative of Maryam bt. ‘Alī al-Juzaynī, mother of the murdered Mūsa b. Ja‘far, mentioned below, and of Khadīja bt. ājj Muammad Zaydān, the wife of Mūsa. His right to represent them has been legally approved regarding the following lawsuit and what is related to it. The inheritance of the aforementioned Mūsa has been legally limited [ithbāt iniār irth] by the actual deputy of the city of Tyr, ‘Abdul-Musin Efendi, based on a document he signed and sealed, to Mūsa’s paternal uncle, his mother, and wife. The content of the document has been approved [by the court in favor of] the plaintiff-representative as part of a valid lawsuit against a denying opponent [kham jāid] in order to represent [the plaintiffs] and [follow up] on the inheritance; all this was certified by [two witnesses]65 who know the two clients [plaintiffs] very well.

  • 66 Beirut sharī‘a courts, unnumbered register, case 422, 28 Rabī‘ II 1284 (August 29, 1867).

[The representative] complained against Shiāda b. Amad b. ājj Sulaymān, from [‘ashīrat] ‘Arab al-‘Uwaykāt, all of them subjects of the [Ottoman] state [jamī‘uhum min tabi‘at al-dawla al-‘ulya], and present with him in the majlis. [The plaintiff-representative] asserted in his lawsuit against [the accused] that on Friday afternoon, the third of Rabī‘ I [1284, 5 July 1867], over the bridge of al-Qāsima, Shiāda had hit Mūsa b. Ja‘far b. Ibrāhīm, my brother’s son [nephew], son of Maryam, and the husband of Khadīja, both of them being [my] aforementioned clients, with the sharp edge of a cutting knife on the left side of his waist, thus wounding him: his intestines became all visible. [The victim] was brought to —ūr [Tyr] and died there on Saturday morning as a result of his wounds. When [the accused] was asked to reply on [the representative’s claims], he denied all allegations: the hitting, wounds, and death that resulted from the beating. The plaintiff was then summoned for evidence, but was unable to furnish any, and when he was asked whether he would like his opponent to take oath, he replied that he does not wish to do so. He was then legally forbidden to accuse [the defendant] of any [wrongdoing] because he was unable to provide any evidence.66

46This case does not differ much from the preceding one (C 11-1) except that the two dates—that of the alleged crime and the court hearing—are much closer (a couple of months only; in the first case, the nine-year gap made the fictitious character of the litigation seem even more obvious). What this case, however, emphasized more thoroughly was the desire of the “next of kin”—the plaintiffs—to settle the status of the inheritance since, it was believed, that by settling first the issue of the accused and then the blood money that he ought to pay, the inheritance ought to come next. Thus, the plaintiffs’s representative (who was himself a “next of kin”—the victim’s nephew—and also a plaintiff alongside the other two) was given mandate not only to confront an “opponent denying his crime,” but, more important, to take care of an inheritance whose beneficiaries had already been identified by a deputy judge (even though the identification of beneficiaries, through a previous court order, was not all too common). Since such a demand was explicitly stated in many crime cases, there is a serious possibility that with defendants strongly denying committing manslaughter, and with absolutely no evidence presented against them, such cases were designed to 1) clear up the accused’s name; and then 2) proceed with the distribution of the inheritance among the beneficiaries. What strengthens this second alternative in particular are some of the document’s more “marginal” sentences: the core of the text is supposed to be an accusation for manslaughter and, following some of the anafī opinions discussed above, only the wife was supposed to benefit from the right to retaliate (since the fiqh privileges matrimony); but the text soon managed to move from a restricted “next of kin” to one that was more general, that is, to all the beneficiaries from the victim’s inheritance. The case could therefore well have been designed for that specific purpose: namely, to clear the way to proceed with the inheritance. The specific task of designating all beneficiaries was common to many crime cases. Moreover, some repetitive elements are already present in both cases (C 11-1 & 11-2): sharpness of the weapon, denial of the accused, who was not even asked to take oath, and, finally, plaintiffs with lots of claims but no evidence. Considering that plaintiffs were, in the final analysis, granted their victim’s inheritance, such cases ought to make more sense when looked upon as contractual settlements rather than judges’ rulings over homicides. The idea here was that what was accorded as a compensation for the brutalized nafs was a māl mutaqawwam sanctioned by the court.

[C 11-3] In the Beirut majlis and in presence of all its members, Yūsuf Efendi b. Amad al-Qawnawī introduced himself as a representative of the woman Āmina bt. usayn al-aydāwī from Tripoli, the maternal aunt of Amad, the murdered person [whose case will be discussed below], and the sister of his mother. The representative’s right was certified by his own client in the majlis itself, and, beside representing her, he was requested to follow up the lawsuit, and to introduce her legally [al-ta‘rīf al-shar‘ī ‘an-hā], and assert the fact that she is the aunt of [the murdered] Amad, and his only inheritor as well; all this as part of a valid lawsuit.

  • 67 Unclear why that name in particular was mentioned since the person was not involved in the case, no (...)
  • 68 The full grade and rank was recorded in the document.
  • 69 Who should have provided such an acknowledgment—the court or the accused? Strange as it may seem, t (...)
  • 70 Beirut sharī‘a courts, unnumbered register, case 343, 18 Rabī‘ I 1284 (20 July 1867).

The representative Yūsuf complained against the Greek Estillo b. Kirbāqū al-Yirāwī, present with him in the majlis, and claimed in his lawsuit that on Saturday night on 13 Ramaān 1283 [19 January 1867], in the café located in maallat Burj al-Kashshāf outside the city of Beirut, and in which was present Mitrī al-Sāqīslī,67 the defendant Estillo did hit Amad b. Khalīl al-Abya, from Tripoli, the son of Fāima, the client’s sister, who was an officer [in the Ottoman army],68 with an iron clad on his chest premeditatively [‘amd-an]. He fell on the floor and was taken to the hospital in Beirut where he survived until the following day at eight [in the evening] and died affected [from his wounds]. And since the inheritance of [the deceased] is limited to his aunt, her representative would like to seek a legal [acknowledgment].69 When the defendant was questioned on [the plaintiff’s allegations] he denied hitting and killing [the victim] Amad. The plaintiff Yūsuf was then asked to furnish evidence to prove his claims, but he failed to do so, even though he was given ample time. He was then presented with the option to request from Estillo to take oath, but he refused to ask him to do so. The plaintiff had thus his case dropped because of lack of evidence.70

47This case underscores the fact that the sole purpose might have indeed been the inheritance. In other words, the fictitious litigation fixes the identity of the inheritor within a specific set of procedures. First, the plaintiff posed herself as the victim’s next of kin (in this case, it should have been the mother and/or father, but since the document did not specify that they predeceased their son, it is not clear why they were not the sole inheritors); only then, as a second step, did the plaintiff also introduce herself as the sole inheritor, so that the whole case looks as if the main concern was murder and that inheritance was a contingent effect. The plaintiff, however, would not have made such unsubstantiated claims had it not been for the quid pro quo involving her inheritance. But when the judge proceeded with his ruling, and since the plaintiff-inheritor had no evidence against her accused, the real purpose—besides clearing the defendant from manslaughter—became one of acknowledging the status of the plaintiff: “And since the inheritance of [the deceased] is limited to his aunt, her representative would like to request a legal [acknowledgment].” Even though such an acknowledgment was never and could not have been made explicit by the court, it was an implicit part of the contractual settlement: the court neither denied such a right to the plaintiff, nor did the judge ask her for any evidence regarding her alleged inheritance rights. Moreover, having refrained from providing the court with any evidence, either oral or written, regarding her right to inherit her deceased nephew, that right was legally assumed as genuine and part of an overall settlement. Yet, it was precisely because such evidence seems to have been problematic, that such fictitious litigations might have posed themselves as an alternative. In fact, fictitious homicide litigations were ideal, among others, for all inheritors with an “uncertain” or “weak” status—those that might not have been included among aṣḥāb al-farā’i—and that this case (C 11-3) exemplifies well enough: the maternal aunt poses herself both as a next of kin and sole inheritor; not only the victim’s parents were left unmentioned (and if they predeceased their son, why was this not mentioned?) but no evidence—on the right to inherit, and on the crime itself—was ever supplied. Only a two-step procedure compensates for such deliberate flaws: the plaintiff first introduces herself as a next of kin, as the “closest” to the victim with an eagerness to retaliate; she then posits herself as the sole beneficiary and muses with the idea of a possible peaceful settlement with blood-money compensation; and finally, she ends up, with the court’s implicit approval, as the only legitimate heir. This case thus presents us with procedures similar to those already encountered in property litigations. For example, a waqf whose litigation was in appearance over who should be administrator (case of Bashīr III and his wife [C 6-1]), and whose ruling assumed an administrative conflict, turns out, upon closer inspection, to have been a fictitious litigation in order to confirm the status of the properties in question as waqf. Thus, even though the ruling itself pondered solely on who should be administrator, it indirectly approved 1) the status of the properties, and 2) the distribution of revenues among beneficiaries. In other words, a final ruling that acts as a waqfiyya and which assumes several other implicit pre-rulings often constitute the raison d’être of the lawsuit. And since no waqfiyya was ever presented in the case of Bashīr III, the litigation-as-text poses itself as the de facto foundational act of the waqf, one that included all the bequeathed properties, conditions, list of beneficiaries, and the administrator’s identity and role.

48The same principle applies to some of the homicides in this chapter: their cases were brought to court neither to solve a murder mystery nor to acquit an accused with nothing in return for the victim’s kin. What in fact the plaintiffs received in return for freeing their accused was an implicit recognition of their status as inheritors. At times, the explicit reference to the presumed inheritance took the form of a shameless bargaining—and this was even more so between family members where the transaction costs were minimal.

  • 71 Beirut sharī‘a courts, unnumbered register, case 548, 4 Jumāda I 1283 (14 September 1866).

[C 11-4] In the majlis of Beirut, responsible for the lawsuits in its liwā’, and in the presence of all its members, was present ājj usayn b. Ibrāhīm al-Shumaysānī from the village of Jubā‘, part of the qaā’ of Sidon. He complained against his son, ‘Alī al-Shumaysānī, also present in the majlis, and both of them subjects of the [Ottoman] state, and claiming in his lawsuit against the latter that on Tuesday night of the month of Dhul-Qa‘da 1281 [March 1865], his daughter Kulthūm disappeared from the village. When her father [the plaintiff] and other inhabitants of the village began searching for her, they found [her body] two months later lying outside the village. Stones were thrown over [the body] with traces of beating and a wound. She was then buried. The plaintiff accused his son ‘Alī, the defendant, of killing her on purpose with the edge of a sharp weapon; and since her father is her sole inheritor and there is no inheritor but him, it is requested that this be legally confirmed by his son, the defendant. Upon investigation, and after it was confirmed that Kulthūm’s inheritance is restricted to her father, the plaintiff, the defendant was asked to reply to his father’s allegations. He did so acknowledging that the inheritance of Kulthūm should be limited to her [and his] father, and denied ever killing or hitting her with a deadly weapon or something else. The plaintiff was then asked to furnish evidence in support of his lawsuit, but he replied that he had none, and was then told that he enjoys the legal right [to request] from his son to take oath [fa-ta‘arrafa bi-anna la-hu al-yamīn al-shar‘ī ‘ala ibni-hi]. When he requested that [his son] takes oath, [the latter] swore that he neither killed nor hit her with a sharp weapon or something else. At that point, the plaintiff had his lawsuit dropped since no evidence exists [to support his claims].71

  • 72 What was the legal value of such an acknowledgment, and why did it have to come from the accused hi (...)

49This parricidal case, even though very similar in its form and structure to the previous ones (C 11-1, 11-2 & 11-3), nevertheless contains some unique features. First, the victim was a close family member, and what was unique here was the bloody incestuous triangle between father (plaintiff), son (accused), and daughter (victim). Second, the father wanted to be the sole beneficiary of his daughter’s inheritance: thus, besides his desire to obtain an acknowledgment from his own son,72 his other aim was to ensure that his son be denied any inheritance—and this, with the son’s open consent. Of course, it is impossible to speculate over the motivations behind such a willingness; it does seem awkward, however, to accuse one’s own son of a parricide the latter denied—on oath—in order to deprive him of a fraction of his sister’s succession. What is even more striking is the accused’s statement restricting his sister’s inheritance to his father only. Considering that the accused enjoyed a full legal right to share with his father his sister’s inheritance, his admission of his father’s right as the sole inheritor—especially that he denied any wrongdoing—is the other strange “confession” in this document. We are then left with two possibilities: either assume that the son—for a reason unknown to us—was ready to sacrifice himself and his reputation for the sake of his father and lose his share in the inheritance; or assume—and this is more likely—that the case was an outcome of a bargaining between father and son: the son did commit the hideous crime (this would imply that he lied under oath), but the father accepted clearing his name in exchange for the totality of the inheritance. Some of the previous cases could also be read along the same line of thought: namely, that they were the outcome of settlements on the basis of “acknowledge that the inheritance is mine/ours and I/we dissociate your name from the blood of our victim.”

50In fact, and surprisingly, it was the inheritance rather than the diya that imposed itself in all four cases, but the plaintiffs, however, claimed the victims’ inheritance differently. In the first case (C 11-1), “the parents of the deceased are his only inheritors,” but with no formal proof whatsoever. In all likelihood, the plaintiffs, who had “lost” their case, opted for that kind of settlement precisely for the sake of the inheritance, and the only statement regarding the latter, having been left unchallenged by both defendant and court, achieved ipso facto a legal status. The second case (C 11-2) was more specific since the beneficiaries had already been identified by a deputy judge. The settlement thus only helped to reconfirm the plaintiffs’ right, on the one hand, and declare the case closed in order to proceed with the inheritance, on the other. In the third case (C 11-3) the inheritance also came up, and the plaintiff’s representative requested “a legal acknowledgment,” but neither the Greek defendant nor the judge came up with any explicit statement regarding the status of that inheritance. As in the first case (C 11-1), the plaintiff’s request was probably only intended to be noted as such in the ruling, and consented as genuine simply because it was left unchallenged. Undeniably, the fourth case (C 11-4) was the strangest since the plaintiff’s request was confirmed by the defendant. But what was common to all four was that the judges made no formal request for the plaintiffs to prove their inheritance rights. One would have expected, say, the usual corroborative witnesses. Such “lapses,” however, were probably intended since the court’s main concern was in principle at least solely focused on knowing whether the defendant was guilty or not. But while the text supposedly narrated the crime itself, it managed the inheritance as a side issue while in reality it was at the heart of all four hearings. That was indeed the whole purpose of those procedural fictions: redeem the crime as a private tort, and thus indirectly confirm the plaintiffs’ right to inherit, or, as we shall see later, their right for the diya.

51A closer look at the fourth text reveals several common features to both the fiqh literature and the three previous cases. The “sharp weapon” whose “edge” was allegedly used by the criminal constituted enough objective evidence, as required by canon law, establishing that the traces of stabbing, beating, and hitting were indeed intentional. As to the description of the damaged body, it barely touches upon superficialities, and is limited to a single statement: “Stones were thrown over with traces of beating and a wound.” The father’s right of inheritance was then formally requested, and as with the previous case (C 11-3), the plaintiff’s right to inherit his deceased daughter was not pre-confirmed by a muftī or judge: that would have been impossible because the succession would have to be shared between at least both parents (in case the mother was alive) and brother (assuming that the victim had no other brother or sister). But that was precisely what the plaintiff did his best to deliberately avoid, probably as part of a pre-trial arrangement: bringing forth the strange conditions of his daughter’s alleged disappearance and murder was an unavoidable step to insure his sole right to inherit her without sharing her succession with anyone else. That request was made for the first time after identifying the crime’s metallic weapon; and was very soon followed by a statement that “upon investigation” the court confirmed the plaintiff’s claim for inheritance (on what basis, and based on which factual evidence?); no word, however, on how the court conducted its “investigation.” An additional acknowledgment came from the accused himself—and that constituted the strangest part of the hearing, enough to draw a line between that case and all previous ones—probably more as a kin member who now acted as a “witness” than an accused. Indeed, the combination of son-witness-accused keeps pushing the text into new directions to the point that traditional borderlines had already been transcended by the time the ruling was announced: the quintessential moment was obviously when the accused turned into a witness and confirmed a statement uttered by the plaintiff. In other words, the space of the court did not create new roles for the parties involved, and left them with the strategies they were accustomed to in their social lives; the only thing that it was imposeed on them, however, was a form of litigation, essential for the court in order to proceed with adjudication.

Crime settlements metamorphosing into contracts

52Peaceful settlements, however, were not always limited to a bargaining in the form of exchanging a redemption with an acknowledgment of an inheritance right; they were not limited to bargains between individuals either. As the following case shows, the defendants—consisting here of a group of elders in a village, hence, a class-action lawsuit—paid blood money to the plaintiffs even though they refused to acknowledge “their” crime in court.

[C 11-5] To the shar‘ī majlis responsible for the lawsuits in the liwā’ of Beirut, and in the presence of its members, came ājj usayn b. ‘Alī b. ājj ‘Isa al-Kurānī from the village of Yāshir in muqāa‘at Tibnīn, [in his function] as guardian of the two minors, ‘Alī Mūsa and ‘Isa sons of usayn b. ‘Alī from the aforementioned village. The guardianship was approved in a signed and sealed document by the actual deputy [judge] of Tibnīn whose content is confirmed as part of a legal lawsuit against a denying opponent concerning [the status] of the two minors and their mature brother Amad, an officer in the [Ottoman] army, who are all inheritors of their murdered brother Muammad: his inheritance being restricted to [all three], and has no legal inheritors but them.

  • 73 The document was also certified by two witnesses.

The guardian complained against ājj asan b. Amad b. ‘Alī from the village of Majdal Zūn in the aforementioned muqāa‘a, also present in the majlis, as legal representative of the rest of the elderly men in his village, [follows the names of a dozen elders], all of whom gave him the right to represent them [with the formal approval of] deputy [judge] Mutafa Efendi in the following litigation [and for the following functions]: litigation, cashing, disbursement, settlement, disclaimer, acknowledgment, collecting, acquittal, and other kinds of contributions [tabarru‘āt]. This was based on a written document signed and sealed by [the above deputy judge] ... on 8 Jumāda I 1284 [7 September 1867] ...73

  • 74 Beirut sharī‘a courts, unnumbered register, case 475, end of Jumāda I 1284 (September 1867).

[The plaintiff] claimed in his lawsuit against [the elders’ representative] that the brother of the two minors and the mature one, Muammad b. usayn b. ‘Alī, was found dead in the property of Mārūn in the lands of the village of Majdal Zūn, in a location close to its built area, on Tuesday the fifth of March of the Gregorian calendar [1867] towards the evening. [The killing was performed] with a sharp weapon [damaging] his neck, head, and right hand, and two of his left-hand fingers. Regarding the location where he was found dead, anyone screaming there would have his voice heard in the village. The aforementioned people [of the village] killed him on purpose with a sharp weapon, so they are requested, based on the shar‘ [to confess their crime]. When [the representative of] the defendants was asked to reply [over his opponent’s allegations], he did so acknowledging the existence of the dead body of Muammad b. usayn b. ‘Alī in the property of Mārūn in the lands of the village of al-Majdal, but that location is far from the built areas for about an hour, so had someone screamed, his voice would not have been heard; and no one from the people of the village killed him, or has any knowledge as to who did so. When the plaintiff was requested to furnish evidence that the voice of the murdered could be heard from the village, and that its people killed him, he said he was incapable of doing so. The two disputants then discussed the case on their own outside the courtroom, and the second day, they came back to court and consented that they reached a settlement based on denial [ul-an ‘an inkār] and on two-thousand piasters to be paid by the defendants’ representative to the party of the minors. Both parties have fully endorsed this settlement and signed it on behalf of the other, and allowed themselves to take oath on their own.74

53Even though this case shares many similarities with all previous ones—a private party claims that a homicide took place against one of its “relatives [ahl],” and the party in question also—and simultaneously—claims the victim’s inheritance in toto; a group of people were accused of murder by plaintiffs who were claiming their victim’s inheritance and who never furnished evidence; and, finally, the accused as a group were found non-guilty because no concrete evidence was placed against them—that is not enough, however, to deprive the case of its uniqueness: 1) an entire group—vaguely introduced as the “elders” of the village—were accused of murder; 2) a cash “compensation” (was it a diya?) was handed in to the minors even though the defendants denied any wrongdoing and despite the fact that the plaintiffs were short on evidence. The case does indeed look like some kind of a class‑action suit in reverse: a collectivity was accused of murder—which is unusual, considering that it does not take the entire population of a village to kill a single person—and their representative acted on their behalf. Beyond that, the accused-as-collectivity did not prompt for different court procedures and were looked upon as if one person. Could it be then that accusing a collectivity was symbolic: a single person committed the murder but a collectivity knew about it and approved the act, probably even helped? Be that as it may, the text did not distinguish between alleged murderer(s) and accomplice(s). If we understand by accomplice someone who did not commit the crime per se, but knew about it beforehand and possibly participated in its preparation and helped in its execution, what was then the notion of sharīk in the fiqh, and what kind of punishment was an accomplice subject to? The plaintiffs’ representative, acting on behalf the three brothers (two of whom were minors), did not, however, frame his case within such distinctions, and their absence could well be that from a legal perspective the difference between murderer and accomplice, whenever a settlement was within reach, was not that relevant: the defendants as a rule were deemed not guilty.

  • 75 The phrasing leaves it unclear whether the approval by a deputy judge included both guardianship an (...)

54The right of guardianship (and inheritance?)75 was approved by a deputy judge prior to the hearings so that the case does not seem to have necessarily established anything new in this regard, but possibly only reconfirmed the inheritance rights of the two minors and older brother. The elders’ representative was granted full power to negotiate and settle, with several functions clearly listed, and that provided him with the authority to propose a compensation despite the denial. So what is a denial with a compensation, or a “settlement based on denial”? Upon closer inspection, the case was not in that respect that different from previous ones: each settlement implied a give and take, a credit and a debt, a lender and a borrower, a contractual settlement—the succession (inheritance) or diya in lieu of the defendant’s innocence, even if the latter maintained his denial, as all did; all such arrangements, to be sure, were an essential aspect of fictitious litigations—and this case was no exception. Since the inheritance was apparently guaranteed, the plaintiffs also pushed for a cash compensation, which they could not legally refer to as diya simply because the accused denied all charges. Regarding evidence, the plaintiffs, thanks to their representative, only suggested that their victim, having been killed with a sharp weapon, should have screamed, and he thus must have been heard in the neighboring village. Since presumably both things must have happened—the scream and its impact—the alleged murder must have also been a common enterprise; if not, then someone must have come to rescue, but that did not happen. Needless to say, such allegations did not contain much evidence, but that was besides the point: in fact, they were more meant to give a complete scenario of the alleged murder than to bring forth evidence, in the hope of strengthening the ethical over the legal. All “homicide stories” narrate, in a brevity only familiar to the sharī‘a courts, what “we all know happened, but to which no evidence exists, so let us settle peacefully—honor versus māl.” Such a narrative “says it all” even if all is denied. Hence “a settlement based on denial,” as the end of the text proposes, meaning that we said/know it all, all is denied, and we settle. Thus, “denial” here is more legal than actual: outside the space of the court, the parties knew what happened. Similarly, “signing on behalf of the other” and “taking oath on their own” were meant to imply that each party was fully aware of the other’s motivations and intentions: I know why you have to deny; and, you know that I have to pay you the compensation you are implicitly requesting. It is in the nature of fictitious litigations to rely on such a double-language—one legal, the other social (religious, moral, and customary).

55Since evidence-as-inquiry (or as “knowledge”) had little place in the penal system, each statement and each correlative step—accusations, rebukes, testimonies, rulings—imposed themselves in their matter-of-factness. To begin with, the murder itself was an act of violence that the documents depicted as an incident caused by a “sharp weapon,” also causing deadly wounds on the victimized body. As noted earlier, the “sharp weapon” was the objective signifier, powerful enough in establishing alone the premeditated nature of the act. The text thus never bothers to mention the intention of the killer: no motives, but only an accused, and besides a naming of the weapon (albeit in a general way—sharp—and without specifications), the text typically provided scant details of the damaged body parts: the purpose behind describing the arāf, as they are referred to in the fiqh, was to assess the diya’s māl, in case the court hearing reached that kind of settlement, which it never did in all the cases dealt with thus far. The accusation, always from the plaintiff’s side, and with no evidence to support it, was, like the murder it was supposed to “denote,” also an act of violence that transcended itself through another act of violence: the accused’s oath, if it ever materialized.

56Because the judicial apparatus delegated the use of violence to the parties themselves, it failed to absorb the violence that disputants brought to court as part of their bargaining strategies. This would have required substituting the matter-of-factness of the actors’ strategies with an abstract legal reasoning combining facts with motives, investigative procedures, codes that handled court procedures, and normative values not restricted to custom. Indeed, the judge’s “voice,” already problematic in the less violent land litigations, is totally absent in this kind of criminal hearing: it is as if the judge’s majlis that served as a medium for “arbitration” was deprived of the familiar tools of legal reasoning—it simply “recorded” what norms “imposed” on facts. In the last case (C 11-5), the accusation of an entire group made explicit what was contingent in other cases: namely, that for both parties, decisionmaking was influenced by the group-as-kin. As to the ambiguity of “compensation,” and in light of the preceding cases (in particular the one between father, son, and daughter [C 11-4]), it only makes sense to speculate that such “compensations” would not have been proposed in the first place had some of the defendants not participated in the crime. Hence, the quid pro quo between the two parties regarding not forcing the accused to take oath, since doing so might have implied lying under oath. Thus, the last case (C 11-5) established three de facto truths: 1) the plaintiffs were the sole inheritors; 2) the defendants were not guilty, but nevertheless accepted to compensate the plaintiffs; and 3) a cash compensation was added to the plaintiffs’ inheritance. In other words, what all these cases were concerned with had nothing to do with solving the nature of the crime, its mystery, motives and intentions, or even finding out who the criminal was. The real concern was perhaps more related to Ibn ‘Ābidīn’s prescription that “the parts enjoy the status of exchangeable things [al-arāf fī ukm al-amwāl].” In fact, each case was concluded with a contractual settlement between the two parties: the body in exchange with inheritance, or rather the body was exchanged with māl, and in case some extra cash as compensation or diya was also granted; this was an additional māl to be added to that of the inheritance. In short, the legality of the judge’s majlis enabled māl to achieve the status of māl mutaqawwam, that is, of an exchanged commodity that was legally protected and whose “value” would be refunded in case of a problem: the courts thus gave the disputants the opportunity to metamorphose their blood feuds into contractual settlements.

The murderous triangle and the cycle of debt

57All five cases are structured in a triangular form—the cycle of debt: (1) the plaintiff and potential inheritor who initiates the suit, (2) the culprit-defendant who denies all charges, and (3) the victim whose wealth will eventually be transferred to the plaintiff.

Figure 11-1. The murderous triangle.

Figure 11-1. The murderous triangle.

58The plaintiff is the one who initiates the lawsuit on the basis that he or she is agnatically related to the victim. On the other hand, the culprit-defendant enjoys no specific genealogical affiliation of consanguinity to either one (except, of course, in the parricidal case, C 11-3 supra). It was the defendant who allegedly triggered ab initio all action by depriving the victim of his or her soul. Each case is therefore haunted by the phantom of those victims whose wealth would eventually be transferred to the plaintiff. In effect, the loss of the victim would translate into a debt whose burden would be shared between plaintiff and defendant. The defendants were the ones who allegedly committed those crimes, and even though all of them strongly deny such allegations, their coming to court side-by-side with the plaintiffs, in what seems like pre-trial arrangements, only reinforces their “debt” towards the victims’s families. In order to be freed from the accusation that hovers around his name, the defendant would “give” something to the victim’s family, that is, his explicit recognition that the plaintiff is indeed the legitimate heir. Moreover, the plaintiff “owes” something to the victim whose blood has not yet been revenged, and he or she does so through a peaceful settlement with the defendant. It is, however, the victim who would eventually act as a creditor/lender to his or her next of kin, that is, the plaintiff who would be permanently indebted to the latter. As to the act of killing, which, whether perpetrated by the alleged culprit or not, has nevertheless triggered the whole process and placed all three parties in a relationship of debt. Thus, the alleged culprit, even though always in a situation of denial, would not have come to the courtroom were he not interested in clearing his name through a judge’s ruling, and he would not have identified the plaintiff as the sole beneficiary had he not been implicated in the crime in one way or another (possibly as the real killer). The alleged culprit thus ends up as a de facto “real” killer who finds himself in a situation of debt not only towards the victim for having taken his or her life, but also towards the plaintiff as the next of kin to the latter.

59Before closing this section, it should be noted that some crimes were simply reported: no plaintiff, no accused, and hence no settlement.

  • 76 The lawsuit majlis, majlis al-da‘āwī, could well be one of those regional councils created by the r (...)
  • 77 Beirut sharī‘a courts, unnumbered register, case 503, 21 Rabī‘ II 1283 (September 2, 1866).

[C 11-6] On Thursday at nine, 19 Rabī‘ II 1283 [August 31, 1866], following an order from the government [al-ukūma], an inspection [kashf] was performed that included Amad Efendi al-Asīr, an official from the sharī‘a court, Khalīl Aghā al-Nimr, first lieutenant in Beirut’s gendarmerie, and Amad Efendi Iskandarānī, a surgeon. They checked upon the Egyptian Rawān b. Muammad al-Balajī, now in his father’s home, located in Zuqāq al-Blā outside Beirut. Upon inspection, he was found wounded in parts of his stomach caused by a sharp weapon. When his father was asked on the cause of the wound, he said that [his son] had a fight with ‘Alī b. Amad al-Dālātī in the home of ajja Warshāniyya, located in zārūb the small bath inside the city, and was hit with a weapon that wounded him. He died on Saturday, 21 Rabī‘ II, and his father requested a second inspection. The same team, with Anūn Efendi Narallah, one of the members of the lawsuits majlis,76 came back to his father’s home and found Rawān dead, with no indication that he died from something other than his wound.77

60A number of entries restricted themselves to that simple form. What was the purpose of inspecting without litigation and investigation? Since the above observations were recorded on the day of decease, and only two days after the team completed its first visit, there was no room for litigation yet (the other cases point to a minimal two-month period). Yet, a person was accused of committing a crime, in a way identical to all previous cases: that is, without any shred of evidence; but what differentiated the non-litigious cases from the others was that the accused did not show up as defendant, and hence was not even asked to accept or deny allegations (by taking oath). Since the victim’s next of kin (the father in this case) made no request for a diya, or any other form of “compensation,” one possibility for recording the murder was that of a follow up in the future (in the event, say, that a diya was to be requested). Yet, even though the father—as a potential plaintiff—had, compared to previous plaintiffs, all the “elements of crime” ready, he did not file for a lawsuit, which is perfectly logical since the previous cases mostly show not much of a judge’s final ruling, but contractual settlements, and this has not been worked out yet here. Moreover, the period in question—the 1860s—was one of judicial reforms, and it could well be that registering a murder as soon as it occurred was not an option anymore (even though it was not to be expected that the victim’s kin comply to such rules), rather than wait for months or even years until a settlement had been reached. The presence of a member from the “lawsuit majlis” upon the victim’s death could be an indication that such cases were forwarded to one of the specialized regional councils created by the reforms policies of the 1840s and later (the 1860s were looked upon as the second period of reforms), rather than wait for a peaceful settlement mediated by the sharī‘a courts. From such a perspective, the homicide was recorded first in a sharī‘a court, only to be investigated later, following the newly drafted 1858 qānūnnāme, in one of the regional councils. But such a requirement, supposing it did exist, did not contribute in any way in raising the number of reported homicides to the sharī‘a courts, which brings us back to the previous hypothesis that those “descriptive” cases should be looked upon in terms of contractual settlements they might engender in future bargains. A final note: recording a murder names a particular person as legally dead, and hence clears the way for his inheritance, and it could well be that such neutral records had no other purpose but to declare a person dead.

Hard cases

61Obviously, not all crime cases were “soft,” in the sense that either no “hard” decisionmaking was required or else the outcome was predictable(settlement through denial). Some, especially rare ones collected from the Damascus sharī‘a courts, might be described as “hard”—at least in the sense that the “elements of crime” took judges by surprise and forced them to request fatwās from muftīs.

  • 78 Literally, a “palace,” the qar, in Aleppo, Damascus, and Cairo, was a “living room” located in the (...)
  • 79 Literally, a “squared place,” denoted in Damascus a squared or slightly rectangular room, usually l (...)

[C 11-7] In the court of deputy judge Muammad fiāhir Efendi whose signature appears above, the two brothers, Shaykh Zayn and usayn sons of Yāsīn al-Shay‘āniyya, from the village of Bayt Sum, complained against the noble Amīn Āghā son of the deceased noble Darwīsh Āghā al-Sharūr. They claimed that the defendant had beaten, eleven months ago, their mother, afiyya bt. Ibrāhīm Dūdāra, with a stick [kirbāj]. He hit her on her right side, arms, and legs. She had been sick for two months and thus died as a result of the beating. They demanded him to pay the legal damages and questioned him on that matter. When [the court did so, the defendant] responded by denying that he hit her on her side and legs, but only on her palms, five times with a stick. After hitting her on her palms, she lived in perfect health for two months without any signs of sickness that might have been caused by his beating. She thus died a natural death according to God’s will and fate. The two plaintiffs were then asked to prove their case and to furnish evidence. [They] thus brought two witnesses, ‘Abbās b. Ibrāhīm, brother of the deceased, and Mutafa b. Muammad ‘Urmān, one of the inhabitants of the village. They both testified that the defendant had, eleven months ago, brought the now deceased mother of the plaintiffs ... to his qar78 inside the home of Muammad, the Shaykh of the aforementioned village. And when they were inside the murabba‘79 of the qar, we heard the defendant beating the now deceased mother of the plaintiffs. They did not see the defendant hit her with their own eyes but only heard him doing so. They have no knowledge as to whether the deceased died as a result of the beating or from another cause. At this point, the deputy judge, whose signature appears above, requested to prepare a draft of the lawsuit [tarīr ūrat al-da‘wa] in order to request a fatwā.

A draft was prepared and sent to the greatest of all ‘ulamā’, usayn Efendi Murādī, the actual muftī of Damascus, and after reading it to both parties and letting each one present his case, the reply came back on a sheet of paper [qirās] from the amīn al-fatwā. [The fatwā stated] that there should be evidence [in the form of] witnessing [of] her death because of [the defendant] beating her, and if there is no evidence of that, the defendant, having recognized the beating, should report to the judge what he finds convenient for himself [bimā yalīqu bi-hi]. The plaintiffs were thus asked, as the fatwā requested, to furnish a formal proof, but they acknowledged that they had no such evidence save [for the statements of] the two witnesses...

  • 80 Damascus 344/133/32-33/18 Ramaān 1252 (27 December 1836).

At this point, the deputy judge informed the plaintiffs that having furnished no evidence, they do not have a [solid] case against the defendant. The case was then settled according to the terms put forward by the defendant, and the plaintiffs were forbidden to act against the defendant because they do not have a case against him. All this took place in the presence and knowledge of the most honorable ‘ālim, Amad Efendi usayn Zādah.80

62The “novelty” here—compared to cases in which the victim either died immediately on the spot, or few hours or days later—was that the victim (the mother of the plaintiffs) lived for two months—“in perfect health,” according to the defendant—prior to her untimely death. The other legal problem was that she was not hit with a “decisive weapon,” according to both accounts, plaintiffs and defendant. Having established the general rule regarding the “objective” nature of the weapon used, our case here proves to be a “hard” one precisely because of the indecisive nature of the weapon, which all by itself proved enough to prompt a fatwā. Evidence had therefore to necessarily move in another direction, that is, other than the tool-of-killing. What the fatwā therefore tackled was the third indecisive element in the case: namely, that all evidence was heard, not seen. The plaintiffs thus lost their case on three grounds: the weapon, time of death, and evidence; and what the fatwā did was simply reject evidence bestowed on the basis of hearsay witnessing: unless the event had been directly witnessed, evidence should remain inconclusive. Not much room therefore for “circumstantial evidence,” or a reconstruction of the crime. Having thus rejected a plausible reconstruction of the woman’s death, the fatwā ruled in favor of the defendant.

63But could the fatwā have done otherwise? Could it have, for example, assumed, simply as a hypothesis, that the beating did in effect cause the alleged “premature” death two months later? To be sure, that would have required an autopsy, which was unheard of at the time in that society. The autopsy would have interpreted any possible link, if any, between the beating and the state of the body. But in the absence of such a diagnosis, the fatwā becomes the interpretive tool par excellence. In effect, had our witnesses seen the event with their own eyes, as the fatwā had requested, would their testimony have been more conclusive? Let us assume that they had witnessed a “harsh” beating—but then how “harsh” is “harsh”? And by what means should this harshness be linked to a death that occurred two months later? The point here is that even direct (non-mediated) evidence would have required the action of a fatwā simply because the latter was endowed with enough symbolic authority to interpret, make assumptions, and create links between facts which would have otherwise been unauthorized.

64Interestingly, a similar problem to that of the above case, questioning the value of evidence, was raised in Ibn ‘Ābidīn’s Radd:

  • 81 The closest title to this non-identified work is Qāsim b. Qulūbughā’s Mūjibāt al-Akām.
  • 82 Abū-l-Su‘ūd [Ebu’s-su‘ūd] al-‘Imādī (1493-1574), Turkish faqīh and muftī known in particular for hi (...)
  • 83 Ibn ‘Ābidīn, Radd, 6:541.

A man complained against another for having beaten his mother on her stomach, and she died as a result of his beating. If the defendant says in the process of presenting counter-arguments [al-daf‘] that she went out to the market after the beating, the counter-argument is invalid; but if he presents evidence that she improved after the beating, [this is considered as] a valid argument. And if one evidence was presented that [she was in] good health [al-iḥḥa] and another that she died [as a result of the beating], the evidence of good health should be given priority. This was stated in [Kardarī’s] Bazzāziyya, and Mushtamal al-akām,81 and Abū-l-Su‘ūd [Ebu’s-su‘ud]82 recommended it in a fatwā.83

65If going out for a walk in the marketplace was not enough evidence for good health, the other alternative for the defendant was to prove that she was in good health after the beating: in other words, good health cannot be proved by means of indirectly related external signs such as walking around or running; it must be proved all by itself through “direct” evidence. But how is this possible? (Further confusion is created by the use of “improved”: What ought to be considered as an indication of “improvement” after a beating?) Should it be based on a medical report? Or on witnesses who were able to testify that they saw the victim in good health during a specific period of time? In all cases, criteria for establishing what good health is need to be specified, whether by medical experts or witnesses, but the fiqh manuals stop short in establishing such criteria. Furthermore, the opinion is stated without much explanatory arguments, but solely in conjunction with earlier opinions.

66So the case, together with the muftī’s fatwā and Ibn ‘Ābidīn’s opinion, did not thoroughly elucidate what would have been looked upon as decisive evidence: some kind of evidence (such as the non-witnessing of an event first-hand) had to be eliminated. But, had the two witnesses seen the event, their seeing would not have necessarily allowed them to link the death with the beating; and the court, in turn, could have—because of the nature of the weapon—classified the death as non-intentional: that is, the purpose was to beat the woman and intimidate her, but not to let her die. A fatwā would in all probability have come at the rescue. In effect, even by modern standards, the relationship, if any, between the beating and the alleged untimely death two months later, would only be a matter of interpretation, primarily by the medical authorities. Had autopsy been available, the medical authorities would have had to interpret any possible effects of the beating on the woman’s body. The point here is that since any damage inflicted on the body through beating reflects in an infinite number of ways, no abstract generalization could be made beforehand. In the fiction of the judiciary, however, only a muftī’s fatwā, which enjoyed de facto oracular powers, could decide what the evidence implied under such circumstances.

  • 84 In the fiqh manuals, the “I say” stage comes after quoting a line of jurists on a specific issue an (...)
  • 85 Ibn ‘Ābidīn, Radd, 6:543.

I say:84 This is in conformity with what has been said when conferring on intent [al-‘amd] which consists in the intention of beating [a person] with a weapon that destroys the [body] parts [yuta‘ammad arbi-hi bi-ālat tufarriq al-ajzā’]. So that if the intention was to beat him with a sword, based on what we said, [the offender] should be punished because the wound was caused by a tool of killing [ālat al-qatl] with the intention of beating. Moreover, regarding what we conferred on the perpetrator [al-jānī] at the beginning of the [jināyāt] book, that an intent [to beat or hurt someone] does not necessarily imply an intention to kill, the meaning of this is that the intention to beat someone with a sharp object [muaddad] does not all by itself [necessarily] imply an intention to kill. Thus, as long as the stipulation [shar] is an intention to beat without killing [then the culprit should not be held guilty]. Even if a killing took place while using a sharp object, the act might not have been intended because it might have taken place accidentally. This is why I stipulate the [premeditated] intention of beating with [a sharp object for the purpose of killing before accusing the offender of premeditated homicide]. So, in this case, if the [perpetrator] had no intention of hitting [his victim] with the sword, the act is [legally looked upon] as non-intentional even if a killing took place with [a sharp metallic object such as a sword].85

  • 86 Ibn ‘Ābidīn, Radd, 6:543.

67This is one of those rare passages where the use of a metallic object that led to a killing does not constitute per se evidence of premeditation. But how would then a court establish premeditation with certainty? The culprit could have killed someone simply by using the “wrong” weapon: he could have for instance only meant to intimidate a person by hitting her on the neck but wrongly killed her because he used a knife instead of a stick; or he could have used a knife, killed the woman, but with no intention to do so in the first place. Thus, the two conditions proposed by Ibn ‘Ābidīn, taken jointly, look much more forceful than previous ones encountered earlier that gave more focus to the weapon per se. In fact, if the victim died because she was hit with a sword, it still needs to be known whether the use of the sword, and the act itself, was deliberate or accidental. But how could this be known? Such requirements might lead to the wrong impression that what sharī‘a penal law was looking for were subjective criteria that would determine the intentions of the killer-as-subject. Such a decisive step, however, would have required an important epistemological shift similar in many ways to that assumed by modern penal systems by scrutinizing the accused’s “state of consciousness.” But the fiqh shows no interest in associating acts with a phenomenology of consciousness; on the contrary, it would like to reduce all actions to objective criteria that would determine whether the killing was intentional. So the two requirements above should be read in light of passages quoted earlier that insisted upon the objective nature of, say, metallic weapons versus more malleable ones in determining intent. Whatever the requirements were, what it all amounted to in practice was an association of intent with the weapon itself. Thus, all the Beirut cases create a direct association between a “sharply edged weapon [ālat ādda]” and premeditation (‘amd), even though each one was concluded with a non-guilty verdict. But, as the Damascus case shows (C 11-7), when “the weapon was not meant to kill,” the defendant was left unpunished. Even if the act of killing did not involve the use of a specific weapon, such as strangulation or drowning by hand, the objective criteria were transferred into something else. Thus, for example, in the case of drowning, the level of water was the most decisive criteria in determining intent: “What applies to strangulation is also valid in drowning: [the level of] water should be high [‘aīm] so that [the victim] cannot escape; and is enough [evidence] to [Abū Yūsuf and Shaybānī] to assume [the drowning incident] as intentional and subject to punishment. But if [the level of water] is low, it usually does not kill, or it might be high but was [nevertheless] possible to survive because of [an ability] to swim [well]: thus, if [the person] was not tense [ghayr mashdūd] and he knew how to swim, as stated in the Tātrākhāniyya and other manuals, these are [examples] of quasi-intent [shibh ‘amd].”86 Knowing that someone could be pushed to be drowned in a high- or low-level water, what is the significance in insisting on drowning when “the water is high”? The text soon withdraws into skepticism: the level of water could be high, yet it is possible to survive in case one knows how to swim. What the text subtly attempts to marginalize, simply because it knows too well that it has no foreseeable solution, is that the level of water cannot be simply described as “high” or “low” due to an infinite number of variations in measurements, in the same way that a person could get drowned in an unlimited number of circumstances, or die for a number of reasons that modern law manuals usually bypass due to their conjectural character. All that is too well known, yet the text insists in limiting the infinite and unpredictableto a few hypothetical cases: the courts cannot possibly deal, under any circumstances, with all those possibilities—such a step would require placing the system under different epistemological foundations—so it limits factual evidence to a few hypothetically absurd and unconvincing conjunctures; and if defendants rarely did get punished, it was because of the encountered difficulties in reducing the factuality of the alleged crime to the few hypothetical conjunctures.

The murderer, his kin, and blood money

  • 87 ‘Awwā, Uūl, 243.

68An issue that seldom imposes itself in crime cases, but to which the fiqh devotes a great deal of effort, was that of blood money: its amount, mode of payment, and by whom and to whom it should be paid. In fact, sharī‘a law required payment of the diya by the ‘āqila of the culprit—the ‘āqila being broadly defined as the professional, military, confessional, tribal, or familial affiliation of the culprit—only in situations of quasi-intent (shibh al-‘amd) and quasi-error (khaa’); but the culprit paid the diya all by himself when his act was looked upon as premeditated (‘amd).87 If the majority of crime settlements consisted of pre-trial arrangements in which the “innocence” of the culprit was traded in recognition for the next of kin’s exclusive right to the victim’s inheritance, by contrast, much fewer cases included a publicly discussed diya-as-settlement: in the other pre-trial cases, the diya came along only discreetly, and was part of a settlement that consisted in exchanging—on a contractual basis—the innocence of the culprit with the victim’s inheritance; in other words, and to put things a bit more crudely, the victim’s inheritance was ipso facto traded-in for his diya. This might seem strange considering that the next of kin was to become the sole beneficiary anyway; however, our Beirut cases point to the uncertain status of the next of kin. In fact, in both theory and practice, the beneficiaries of an inheritance and the next of kin were two different sets of legal beneficiaries which, at times, could have overlapped. To be sure, the beneficiaries of an inheritance, following rules established in the farā’i manuals, were usually much more numerous than the next of kin. As the Beirut cases show, the plaintiffs were to impose themselves as the sole beneficiaries of the victim’s inheritance in a two-step procedure: first, the next of kin introduced herself (or themselves) as plaintiffs and inheritors at the same time; second, a contractual settlement was reached whereby the defendant’s innocence was traded-in with an implicit or explicit recognition that the plaintiff(s) was/were the sole inheritor(s). This also furnished a recognition (often in the form of direct adjudication) that the case was over: in the absence of a public authority that investigated crimes, only an acknowledgment from the plaintiff(s) that she/they were short of evidence would close the case in order to proceed with the inheritance.

69Obviously, when no such pre-trial settlements were concluded, cases became longer and more confusing since the diya as a form of compensation had to be handled in all its complexity.

  • 88 “The defendant [then claimed to have] beaten the victim,” would have been a more appropriate and ac (...)
  • 89 As will become clearer later, the testimonies were apparently not delivered in court, and, because (...)
  • 90 The text wrongly mentions the plaintiff (al-mudda‘ī).

[C 11-8] ‘Alī b. Mutafa Sharaf, the inheritor of his cousin’s fortune, ammūd b. usayn Hāshim Sharaf, together with the wife of the latter who was not present [in court], and his minor daughter, [all complained] against the Christian Ya‘qūb son of Yūsuf. They claimed that the defendant had beaten, sixteen days ago, the deceased cousin of the plaintiff who died immediately as a result of a stone hitting him on the left side of his waist, which he was subjected to [by the defendant]. He thus requested from him [the compensation] he legally owes him. When [the defendant] was requested to reply, he responded that he did have a fight with the deceased and that they held one another and both fell on the ground. The defendant had then beaten the victim with a stick [qaīb] on the shoulder,88 but did not die as a result of the beating. He also denied hitting the deceased with a stone on his waist or that he died from the beating. He also claimed that [the victim] was sick for a year and died from his sickness rather than from [his own] beating. When the plaintiff was asked for evidence, he relied on two Muslim witnesses who both testified89 that the defendant, [sixteen days ago], had a fight with the deceased, and that he did hit him90 with a stone on his waist; the latter died immediately as a result of the beating.

  • 91 That is, one that was quasi-intentional or by mistake. The court, however, did not explicitly decid (...)

[The plaintiff] then requested a fatwā regarding the legality of the two witnesses’ testimonies. A reply came [from the muftī] suggesting that the witnesses’ testimonies are accepted whether they were commended privately or publicly [zukkiyat al-shuhūd sirr-an wa ‘alan-an]; but [the testimony] of the killer is not accepted in this context [fī hadhihi al-ūra: within this picture] because he neither used a weapon that was sharp enough [muaddad] nor that destroys the [body] parts [mufarriq li-l-ajzā’: that fragments the body]. The judge then declared the mother of the minor girl as her guardian so that she could request on her behalf, prior to reaching the age of maturity, her share of the diya thus avoiding a long wait. In this kind of killing,91 the diya is on the ‘āqila, supposing that the killer [belongs to] one; and in case he has no ‘āqila, then the diya is to be paid by the killer himself. The [value of the] diya is [as follows]: one-hundred camels, a thousand mithqāl of gold, and ten-thousand dirhams of silver, to be paid by the killer during a three-year period.

  • 92 Unclear handwriting due to a damaged edge in the manuscript.
  • 93 The beginning of the document explicitly states “exposed to your excellency [al-ma‘rū li-sa‘ādatuk (...)
  • 94 Damascus 344/1/6/beginning of Muarram 1253 (April 1837).

At this point, the assailant converted to Islām and [the plaintiff] requested [another] fatwā [regarding that conversion]. An honorable fatwā was thus issued whose content indicated that a non-Muslim [dhimmi] has hit a man with a stone on his waist, to the point that he died as a result of his wounds. Since this has [already] been confirmed by a judge, a diya was requested from the assailant [ārib], but he soon converted to Islām and he practiced the religion of Islām [dakhala dīn al-Islām]: should the diya then be maintained, rather than dropped [tasqu] because he converted to Islām? However, based on Ibn Nujaym’s al-Ashbāh wa-l-naā’ir, his Islām invalidates [yusqi] ...92 the rights [uqūq] of God but does not invalidate the rights of believers. Thus, based on this [opinion] and the fact that witnesses were commended in their place of living [zukkiyat al-shuhūd fī maallāti-him], the defendant was required to pay his diya. An order was issued in Damascus so that the defendant officially receives a legal notice regarding that matter. This was exposed to your excellency [dawlatu-kum]93 and the order is yours.94

70Interestingly, the culprit was first referred to as defendant, then as killer in the first fatwā, and finally as assailant in the second fatwā: the change from defendant to killer immediately followed—or rather resulted—from the two testimonies. Unlike any of the cases discussed earlier, this one had witnesses who supported the plaintiff’s claims; that was preceded by the defendant’s own rebuke (daf‘) of the plaintiff’s allegations. Up to a point, the text takes a habitual path: arguments for the case, followed by counter-arguments, then testimonies corroborating the original arguments. Why did the court opt in favor of the two testimonies against the defendant’s daf‘? Was it that the latter had no witnesses? Two problems had to be worked out prior to adjudicating in favor of the plaintiff (the text seems to have relied on a previous adjudication, even though it goes unmentioned, while the ending suggests that the above text was only meant to give notice to the accused and notify the local authorities of a compensation that must be paid): 1) the validity of both testimonies, and 2) whether the accused’s daf‘ could be accepted. The testimonies turned out to be problematic simply because they were apparently not delivered firsthand in court: in fact, the text’s conclusion does suggest that they were recorded at the witnesses’ maallāt (“place of living”). Moreover, a fatwā came at the rescue of both testimonies proposing their validity whether “commended privately [secretly] or publicly.” Secretly here means in the privacy of the homes of the witnesses, while public refers to a court setting; but it remains unclear why the witnesses testified in the privacy of their own homes. Be that as it may, the testimonies were commended: Was that enough to render the accused a guilty person and impose the diya on his ‘āqila?

71The testimonies were not enough by themselves to reprove the defendant since the first fatwā had to decide on his own rebuke too. But other grounds contributed to making the defendant more of a killer: the “weapon” he confessed using—a stick—or a stone, according to his opponent—did not fall within the objective criteria for legally determining whether the act of killing was premeditated or not. As a matter of fact, he was even described as “without any weapon [bi-ghayr silā]”: both stick and stone (even though that was considered more damaging) lacked the legal criteria that would have endowed them with the required objectivity necessary in determining whether the act of killing was premeditated or quasi-intentional. In other words, the defendant’s “weapon” was disregarded as “no weapon” simply because it met no objective criteria, compared, say, to metallic weapons with sharpened edges. Yet, the fatwā’s statement is a bit strange, to say the least: “the killer’s statements are not accepted in this context because he neither used a weapon that was sharp nor one that destroys the body parts.” Having first approved the two testimonies as valid, the fatwā now qualifies the accused as killer. Ironically, had the alleged killer used a sharp metallic tool, the testimonies would have ipso facto become redundant because the weapon per se would have established proof of intent. So the accused would have been guilty both ways—with a sharpened weapon or without it: How would then such an accused prove his innocence? Note that in the previous Damascus case (C 11-7), a stick was also used, but since no two witnesses effectively saw the act of beating, the accused was found not guilty. The point here is that the accused—any accused—necessarily found himself in a deadly closed (hermeneutic) circle: either he used a sharp metallic weapon, with which he must have killed his alleged victim, and he therefore was proven guilty (meaning he will be either sentenced to death or pay the diya on his own); or else though his weapon was not decisive, two witnesses saw the alleged crime, he thus then might also be proven guilty. Was there any way for an accused not to be guilty? Only if he denied any wrongdoing, and his plaintiff was short of evidence, and oath-taking was completely bypassed. Such cases, even though very common, were mostly fictitious litigations involving contractual settlements. In other words, unless the alleged killer worked his own way with the victim’s kin in some kind of pre-trial arrangement, chances were that he would be found guilty. Unless the victim died immediately, testimonies were only valid insofar as they bore a direct witnessing to the alleged crime, but only in combination with a decisive weapon would an accused be charged for a crime: only the weapon determined intent (to a certain extent), not the witnesses, and some jurists found it even redundant to ask witnesses whether an act was premeditated.

72In our last Damascus case (C 11-8), the next of kin—one of the victim’s cousins (the plaintiff), the victim’s wife and minor daughter—explicitly manifested their desire to receive the diya: since no trade-in was worked out for exchanging the defendant’s innocence—he was found guilty—so the plaintiff’s right of compensation, the diya, was requested, its value specified, together with a three-year mode of payment. To be sure, the diya’s value was high, indeed so high that the killer found it beneficial to convert to Islām. But what probably rendered any trade-in useless was the availability of witnesses, on the one hand, and the classification of the homicide as quasi-intentional and error-like, on the other. Those two factors combined tremendously limited pre-trial arrangements: the plaintiffs knew they had a strong case that anyhow would not be classified as intentional (hence the diya as a necessary settlement): So why settle for less?

  • 95 Niklas Luhmann, A Sociological Theory of Law (London-Boston: Routledge & Kegan Paul, 1985), 136: “a (...)

73In the second fatwā, the killer metamorphoses into an assailant (ārib)—a more neutral term that fell short of accusing the defendant of killing the person he assaulted. The reason might well be that it would have been embarrassing for the muftī to discuss the case of a “killer who converted to Islām,” so an “assailant that converted to Islām” sounded much better. That fatwā brings the last two Damascus cases (C 11-7 & 11-8) close to one other even though in the former the accused was found not guilty: in fact, not only were both cases rescued by fatwās, but, more important, the fatwās came in lieu of the judges’ rulings. In other words, they rescued judicial reasoning from a deadlock. In the first case, the judge was at a loss in determining whether a witnessed but only heard event should bear the same weight as one that was seen, while in the second, the defendant’s conversion to Islām created difficulties in decision-making. However, fatwās, like the witnesses’ oaths, imposed in their matter-of-factness a de facto ruling for the judge. In other words, the two judges did not even have to reconstruct in their rulings the logic of all the arguments introduced in each one of the two cases since the fatwās were indeed—or replaced—what ought to have been the judges’ rulings. The logic of the legal apparatus as a whole did not permit a judge to proceed with his own normative values: the judge’s consciousness should identify with the set of normative values constructed by the legal system.95

74The two Damascus cases point to one common difficulty: whenever the case did not involve the use of a sharp metallic tool, it did ipso facto pose a legal problem that had to be transcended either by testimonies or fatwās—or both. Whenever the “weapon” could not establish the required objective criteria in determining the accused’s intent—was it intentional or quasi-intentional?—objectivity had to be guaranteed by other means, namely, by recapturing two of the most traditional persuasive tools of the sharī‘a courts: witnessing and fatwās. The oath-taking of witnesses and muftīs’s fatwās symbolically substituted for the violence of the crime since they both worked effectively only when taken for granted without much skepticism. They thus imposed a matter-of-factness within the legal reasoning—in a way similar to customary practices—that judges had no other choice but to accept.

The victim vanished

75What happens when the alleged victim—someone whose relatives were convinced that he was killed—simply vanishes: there was no trace of a body, no weapon, but only the “last moments” of the allegedly victimized person were recounted by the defendants. Those narratives were the only left traces. Strange as it may seem, the courts followed the same procedures between persons who allegedly vanished and others who were killed. In short, there was an accused: either accused of “hiding” someone or of manslaughter, and unless evidence was furnished by the plaintiff—two witnesses—the defendant would be summoned to take oath (if the plaintiff wished him to do so) and found not guilty for lack of evidence. Once the plaintiff furnished evidence, the defendant was left with a daf‘-strategy of counter-arguments, which had not been approved in the previous case (C 11-8) because of the tool-of-killing.

  • 96 Damascus 312/48/149/23 Rabī‘ I 1244 (October 3, 1828).

[C 11-9] At [the court] of our honorable Sayyid Muammad As‘ad Efendi, deputy judge of the noble [chief judge] whose signature appears above: Based on a report [maḥḍar] from the honorable amīr al-umarā’, the greatest of all, and the defender of the provinces ..., ājj ‘Uthmān Bāshā Ketukhdā, and the honorable ... minister [wazīr] ājj āli Bāshā, the wālī of Damascus and the amīr al-ajj to the sacred House of God, let God preserve his doings, ‘Ubayd Allāh b. Sayyid ‘Abdul-Ghanī al-‘Aash complained against ‘Alī asan b. ‘Alī from the village of Dūmā, that the son of the plaintiff, ājj Ibrāhīm, was invited, twenty-eight days ago, at the home of the defendant in his home in the village of Dūmā. He left there a donkey, a saddlebag [khurj], and an aba [‘abāt]; he has been missing ever since [fuqida] and his location is unknown. His father who has no knowledge of his life or death accuses the defendant and the people of the village for killing and executing him [i‘dām] because he is missing and left at the defendant’s home his donkey, saddlebag, and aba, and also because a request was made for the defendant to search for the missing person. [The court] then questioned the defendant and the Shaykh of the aforementioned village, Shaykh ‘Abdul-Qādir Abū Amīn, on the truth of the matter. They responded that they had no knowledge of the whereabouts of that missing person, and where he is now, and that the defendant, the Shaykh of the village, and its inhabitants, have all been searching for him ever since he has been absent until this moment, but they have no news and found no trace of him. The defendant then recounted [the events that led to the disappearance] and claimed that [twenty-eight days ago] the plaintiff’s son, ājj Ibrāhīm, stayed as a guest in [his] home and that he went out towards sunset, but we have no idea where he went. At this point, the deputy judge whose signature appears above decided not to place a charge against the defendant either for killing [the plaintiff’s son] or for sentencing him to death; he does not wish to accuse anyone else either. [The plaintiff’s] lawsuit is therefore not valid [ghayr masmū‘at: not to be listened to] and [he] was forbidden from legally opposing [mu‘āraat] the defendant.96

76Why was the plaintiff never summoned for evidence? Once he narrated his own version of the story, thus accusing the defendant of deliberately killing his own son, the text moves to a questioning of the defendant. The defendant’s reply—and those associated with him, the ahālī of his own village—was not restricted, as in previous cases, to a strong denial. He was given the opportunity to explain what happened and how he and the other villagers attempted to look for their host, but in vain. Clearly then, the whole case was an endeavor to clear the defendant and the villagers from both premeditated homicide or any wrongdoing. So why was the judge able to rule in their favor without the traditional oath-taking or at least without the usual plaintiff’s acknowledgment that he lacks evidence? And why was the plaintiff not asked for evidence in the first place? In fact, had he been requested for evidence, and then replied that he did not have any, the defendant might not have been asked to take oath (this was up to the plaintiff to petition for such a request): the ruling would still have been in favor of the defense. Be that as it may, the unusual change in the structure of proof and persuasion in this case explains why it was necessary to fill the text from the beginning with the names of two very prestigious personalities—one of them was in fact the wālī of Damascus. Both had already completed, according to the text, a procès-verbal, in which they apparently reported the events, accusations, and denials. In other words, the prestige of those two noblemen replaced the regular judicial procedures: indeed, it was as if they reversed those procedures by acting as witnesses on behalf of the defendant’s “party” (that is, the whole village), even though that was not explicitly stated as such. The reversal could also be explained in the following way: since providing evidence was always on the plaintiff’s side (and this was usually actualized by means of two witnesses), defendants were normally denied direct evidence by means of witnessing and the like—they would only take oath and only when they were requested to do so. What happens then when an “accused” has enough evidence to counter the accusations? Defendants enjoy the right to rebuke (daf‘) their plaintiffs’ case by deploying counter-evidence (see the fatwās of the previous case [C 11-8]). But the accused in this case had a lawsuit normally filed against them in what might have been a fictitious litigation in order to reach a peaceful settlement. The accused only indirectly relied upon their two prestigious witnesses who “testified,” so to speak, through a procès-verbal: the regular procedures were thus reversed and the defendants won their case. But the peculiarity of this situation should not hide what we have been saying all along: that proof and persuasion were not limited to a process of abstract legal reasoning that involved anything from fact-finding to applying the right procedures; they consisted rather of symbolically articulated violent acts (such as oath taking, witnessing, or the support of prestigious personalities) that “neutralized” the violence of the disputants and their kin. Such symbolic acts found their way within the legal system and became all by themselves procedural matters: testimonies, fatwās, oath-taking, and what might be called “status-witnessing”—individuals high in the social hierarchy that testify in court—by imposing themselves in their matter-of-factness thus replaced what might have been procedures based on the complexities of inter-subjective communication (most notably, in modern systems, direct- and cross-examinations).

The “public” jurisdiction of the regional councils over criminal procedures

77Criminal procedures were therefore very much restricted to the limitations of sharī‘a law and crystallized in the majority of cases either as contractual arrangements between plaintiffs and defendants (hence implying a “genuine” acknowledgment of the accused’s non-guilt), or else to the modalities of a diya’s payment. But that leaves us with little corporal punishment, if at all. A question therefore begs itself: Was there any judicial procedures that led to specific punishments? Were there any other instances (political, legal, or other) that might have regulated punishment? And if so, why was the process divided into so many instances—between the sharī‘a courts and other institutions? In spite of the scanty documentation available to us, it is still possible to discern how crimes—or mere felonies—were managed. To be sure, the sharī‘a courts were restricted to a certain type of criminality and felonies, but, strange as it may sound, judges never took the decisive step in declaring a guilty verdict with punishment in mind, that is, incarceration. However, as the land cases already showed, several “legal” authorities competed among each other for the regulation and possession of landed properties. One of them was the Tanīmāt majlis: composed of a dozen non-legal prestigious a‘yān personalities, the council consecrated a division of labor between the legal activities of the sharī‘a courts and the notables’ political and economic administration of the affairs of the province of Damascus (see Chapter9 supra). The land cases examined in earlier chapters point to such a division of labor among various jurisdictions: the sharī‘a courts, on the one hand, took care of “privately” owned lands, hence their orientation was mostly towards inter-family conflicts (mainly as a re-distribution of properties along genealogical lines); while, on the other hand, the regional councils were mostly—if not strictly—limited to state-owned mīrī lands. Such a division reflected a retrenchment of sharī‘a law into its own traditional domains and a close following of the anafī juristic typology, thus ignoring all kinds of new directives proposed either by leading jurists close to the imperial bureaucracy in Istanbul, such as Ebu’s-su‘ud (d. 1547). The sharī‘a courts were therefore left without proper “legislation” regarding state-owned lands, and even though timār and mīrī adjudication was never officially withdrawn from their jurisdiction, serious timār-mīrī conflicts had to be transferred to non-“legal” authorities (the wālī’s dīwān, and later the majālis of the Tanīmāt), even though the regional councils were indeed legal institutions. The creation of the councils was to primarily address the issue of sultanic legislation that would not have adequate support within the jurisdiction of the sharī‘a courts. By the nineteenth century, what might still be referred to as “sultanic legislation” lost the organizational character of the sixteenth-century qānūnnāme, and various texts—imperial orders, edicts, firmans, decrees, etc.—were issued from the central authorities. Altogether, in addition to the older qānūnnāme, they formed that parallel system of sultanic legislation that the sharī‘a courts could only partially handle. The wālīs’ dīwāns, and later the regional councils, were there to precisely address that issue of parallel legislation. Thus, the reliance on non-legal expertise was only a faute-de-mieux step, one whose only other alternative would have been to create a corps of “secular” lawyers and judges whose functions would have complemented those of the sharī‘a courts. Such a body of experts, however, would have lacked the legitimacy of the urban notables, hence the idea of council-boards with non-expert but prominent individuals.

  • 97 Majlis Wilāyet Dimashq, 28 Dhul-ijja 1260 (January 8, 1845), 89-90 (document 123). The ketukhda (o (...)
  • 98 The assumption here is that the hearings took place in a sharī‘a court, even though that was not ex (...)
  • 99 All cases dealt with in this end-section are from document 123 of the Damascus majlis (January 8, 1 (...)

78The division of labor between the sharī‘a courts and the majālis of the Tanīmāt thus also affected criminality: for some reason, which we need to explore, certain crimes had to be adjudicated by the majlis of Damascus. But, as usual, documentation is quite uneven and scanty, and even though the early Damascus Tanīmāt majlis in 1845 adjudicated on few crimes, their narrowness is enough to limit us to only few preliminary conclusions. Thus, for example, in a session devoted entirely to felonies and crimes (and that was unusual), the Damascus majlis looked upon individual cases of alleged criminals who committed “wrongdoings [qabāāt: ugly things] thus prompting punishment due to the “ugly” side of their actions. Since they were incarcerated in the prison of Acre, they were to brought back to the majlis in order to investigate their crime and decide for each one the proper punishment corresponding to the crime in question. A memo was then to be addressed to the ketukhda.97 Take for example the case [C 11-10] of ‘Abdul-‘Āl b. ‘Alī al-Hindāwī who was accused by ‘Abdul-Karīm b. ‘Alī Aghā Jabrī “of stealing his horse that he was able to prove against him in court,98 that he robbed him in a wild land and took his horse. When witnesses testified [against him] he requested that he be refunded four-hundred piasters for his stolen horse.”99 The majlis then checked whether a “legal notification [i‘lām shar‘ī]” had already been completed—meaning that documentary evidence did exist for what the plaintiff and accused said—and after receiving an affirmative reply from the ketukhda, the majlis ruled that the accused should be incarcerated for two years in the prison of ‘Akkā.

79In another case [C 11-11], the plaintiff Surūr Aghā accused Sālem al-ālānī of the theft of three homes close to the courthouse and that he personally helped in moving them from the accused’s home, and they were hidden, for safety reasons, in the chimney. Having acknowledged his theft, he was sentenced to a year of incarceration in the prison of ‘Akkā.

80“It was decided,” says the majlis report, “on behalf of asan al-Qurbī that he stole an alāja garment.” In this case [C 11-12], there was no plaintiff by name, but only an accused who was interrogated by the majlis on the alleged theft. He claimed that he bought a garment from Ibn al-Shaṭṭī and, in turn, sold it. Two days later, Ibn al-Shaṭṭī accused him of theft, which eventually led to his arrest. The majlis decided to release him from prison.

81Several other theft cases were reported in the minutes of the majlis in addition to minor misdemeanors which, due to their similarity with previous ones, we need not get into here. One case [C 11-13], however, involved a homicide. Mutafa al-Arash was accused of killing his wife. Having first acknowledged the killing in the presence of legal authorities, he subsequently denied to the majlis having done so, only to later acknowledge for a second time. “Because of the woman’s misbehavior [‘aybu-hā] and because there is no plaintiff and no [blood] money payment in lieu of punishment [ajr-an li-l-quā], a ruling requested that he be imprisoned for three years in ‘Akkā.”

82A final case [C 11-14] involved two culprits identified as ‘Abdul-Fattā and Manūr who were both accused of having gunned down people from the village of Mazza in the vicinity of Damascus. According to their account, they came to the village asking for bread, but the inhabitants attacked them with sticks and ‘Abdul-Fattā was severely beaten and hurt. Manūr, who had a gun, fired in self-protection and accidentally shot one of the villagers, a man described by Manūr himself as one “of good will, who came in person to the prison and dropped his case against me.” The villagers, however, who were represented in the majlis by three of their inhabitants, had a different story. They claimed that the two alleged culprits came to the village at nine at night (no specific date) directly to the mill where a woman was sleeping. She had run away, came to the village, and told the inhabitants of the two strangers at the mill. But as soon as a group of the villagers reached the mill, they were shot at by Manūr, and one of them received a bullet in his thigh and was still under treatment. The majlis decided to keep the two culprits in prison until the wounded villager totally recovered, and concluded with an overall evaluation of all felonies and crimes it handled in that session: “Since the criminal activities of all the above prisoners have been legally scrutinized by the majlis, and each one was punished based on the crime he committed and its ugliness, the majlis saw it beneficial that they be disciplined, and it will do the same to all those who will behave badly [ashqiyā].”

83The logic behind the division of labor between the majlis and the sharī‘a courts can now be reconsidered. To begin with, all cases, whether within the jurisdiction of the majlis or the courts, were “serious” felonies and crimes in that they either involved at least some form of bodily damage or theft, or at the most a homicide. Indeed, the seriousness of the crime (or misdemeanor) was not enough a criteria to determine under which jurisdiction a case ought to be handled. In fact, between the majlis and the courts, the division of labor was practically unrelated to the nature of the crime itself or its “seriousness”: what mattered in the final analysis was whether a contractual settlement was possible or not. Thus, sharī‘a courts managed all criminal cases in which either a contractual settlement was possible or a diya had to be negotiated, while the jurisdiction of the majlis extended over cases in which settlements were not possible and a punishment in the form of incarceration had to be decided. On what basis, however, was such a division of labor performed, and why was punishment as such only within the jurisdiction of the majlis? Considering that nothing in sharī‘a law did prevent the courts from punishing culprits, why then did such a task become—at a period still to be determined—exclusively part of the majlis’ legal authority? Finally, on what basis did the majlis adjudicate over criminal cases and the like: meaning, which codes or legal sources did it rely upon, which procedures, and how were the duration of the incarceration periods assessed?

84To begin with, the division in labor between the courts and majlis regarding felonies and crimes reflected a much broader division in Ottoman law between a “secular” qānūn and sharī‘a law. More specifically, in the case of crimes and felonies, anafī practice neither operates within a concept of a penal law, nor does it clearly distinguish between an assault on a person and one on a property. In fact, anafīs did indeed look at the body in terms of an aggregate of parts, each one of which, in case of damage, would be assessed on its own for compensation. The body, in other words, was looked upon as private property that could be subjected to usurpation, and, in case of damage, compensation would be worked out between the two parties. With such a view, “investigative procedures” and fact-finding were limited: 1) because it all amounted to compensating the damaged party (either the victim him/herself or his/her kin), cases were thus reduced to private torts—similar in that respect to other non-criminal contractual settlements—rather than a public concern; and 2) since disputants—and plaintiffs in particular—provided the courts with their own “factual evidence,” it all amounted to, in the final analysis, as to whether the other party would accept such claims or not—usually in the form of oath taking. Thus, indeed, the oath, like a muftī’s fatwā, was oracular justice at its best, which brought law closer to common religious and local customs than to a proper legal reasoning of any kind. Reducing crimes and felonies to their compensatory aspects only, and the lack of a clear demarcation between what usurpation of a body and a land implied, are additional signs of the limitations of anafism when it came to the law’s public role, especially state (public) law.

  • 100 Colin Imber, Ebu’s-su‘ud: The Islamic Legal Tradition (Edinburgh: Edinburgh University Press, 1997) (...)
  • 101 Imber, Ebu’s-su‘ud, 224.

85Since the sixteenth century, a leading muftī such as Ebu’s-su‘ud openly questioned “How are thieves to be ‘carefully examined’?,”100 a question which indeed goes to the heart of the limitations of sharī‘a law. His reply came in the form of an anecdote about how the fourth shī‘ī caliph ‘Alī conducted an inquiry into an abduction, after the established procedures in court had failed to identify the culprit. Colin Imber rightly argues that the anecdote serves two purposes. “First, it justifies the removal of criminal cases from the sharī‘a courts ... Second, it serves to justify non-canonical methods of criminal investigation and thief-taking, such as occur in the Ottoman Criminal code in cases, for example, of thefts from caravanserais.”101 What is important for our purposes is that specific kinds of text, emanating from scholars associated by reputation to the imperial center, such as fatwās encouraging the promotion of non-canonical methods of investigation for crimes and felonies, were not at all incorporated in the anafī literature of the later periods. In fact, not only were they ignored, but in a way similar to the issues of rent and tax, which for the most part the anafīs kept discussing under the obsolete headings of kharāj and ‘ushr, that same literature maintained the canonical notions of crimes and homicides alive through procedural fictions. The sharī‘a courts thus transformed crimes into contractual settlements. This has led to a clear division between the jurisdiction of the courts, on the one hand, and that of the regional councils and other state institutions on the other. Moreover, several legislative and adjudicative authorities with different discursive strategies, at times incompatible, competed with one another with no visible effort at bringing the judicial apparatus into a coherent whole.

86The implications of such divisions and incongruent discourses on the modus operandi of Ottoman societies is obviously of fundamental importance. For one thing, it indicates divisions in the power-relations between regional and urban networks, on the one hand, and the imperial authorities on the other. The process of vertical integration between élite groups, from center to periphery, was always weak in Ottoman societies. To begin with, the imperial dynasty did not assume the role of a “court society” that other élite groups all across the empire could emulate. In other words, there was a “court” but no “court society” that would have integrated élite groups in terms of manners, literature, and art. In the Syrian provinces, not only the ruling notables were very different in their manners and kinship from those in Istanbul, but their internal differences were even more pronounced. Among the Maronites and Druze in Mount Lebanon, marriages in ruling families such as the Shihābs were either restricted to cousins from the same or related clans, or to “outsiders,” meaning women that were not even from Mount Lebanon. In both cases, the aim was to avoid local marriages from nobility groups—a way for the Shihābs to consolidate their rule, politics, and properties; they also avoided pushing other ambitious families forward. In Damascus, notablefamilies married among the closed circle of nobility and had no “court life” as such. And unlike the Lebanese nobility which had close contacts with its peasantry, not to mention the role of the Maronite Church in promoting a social ideology, the Damascus notables relied for the most part on rural groups of multazims to conduct their business and dominate the peasantry of the nearby fiscal units. But when it came to the contribution of the ‘ulamā’, Damascus dominated in every respect. No other city in Greater Syria could match the output of the Damascus muftis and jurists since the sixteenth century. The point is that those jurists fought for their “judicial independence” from the imperial bureaucracy and were able to maintain it precisely because of the weak process of vertical integration among élite groups in the empire. The system as a whole functioned more as one of subservience, balance, and bargaining between groups thanwitha desire to integrate. As a result, social groups made different claims and created competing discourses in the hope of maintaining their domination over institutions and networks. Thus, in both the judicial and political arenas, there was no visible desire to “integrate” populations, groups, and individuals (or subjects of the empire as they are often referred to) by providing them with a combination of public sphere and discourse, not to mention the various disciplinary techniques that go hand in hand with such integrative strategies.

87The demarcation line between courts and councils becomes more visible once we realize that councils took over from the jurisdiction of the courts whenever sharī‘a law failed on procedural matters. Thus, for example, both handled crime, but each limited itself to a specific procedure: the courts to contractual settlements and the majlis to an assessment of punishment. Similarly, the majlis dealt with land, tax, and rent litigations, but almost exclusively those related to mīrī or public waqfs; the reason being that sharī‘a law felt uneasy about the massive ownership of state lands and was conceptually ill equipped when it came to taxation. So the sharī‘a courts hardly dealt with taxes and were left for the most part with private litigations involving familial property transfers. For this reason, the Tanīmāt majālis, even though headed by a group of political personalities from prominent urban families, should not be seen as a political body, but primarily as legal institutions whose main purpose was to bypass the procedural limitations of sharī‘a law. The fact that non legal political personalities adjudicated in such institutions only shows how difficult it was for the Ottoman authorities to create a body of “secular” lawyers and judges that would apply the qānūn.

The economics of crime

  • 102 Even today, in countries like Syria and Lebanon, which by and large have adopted the French system (...)

88The types of wrongful conduct examined in various cases in previous chapters all consisted of illegally occupied properties, but even when the plaintiff’s case turned legitimate, the defendant was merely summoned to vacate and restitute the disputed property (raf‘ yad). Thus, court action never ruled in terms of compensation, material or otherwise, that would have compensated the plaintiff either for direct damage to the property, or more importantly, for the losses he or she incurred during the defendant’s illegal occupation. In short, if only the principle of restitution applies when a property is illegally occupied, then tort law, at least as far as property and contract are concerned, is practically nonexistent.102 Similarly, contracts were not protected by any tort law, and were subject to the rule of strict liability rather than fault liability. Thus, a seller was liable if his merchandise proved defective, or upon breach of contract, or if performance came late. But in all such cases, as restitution is the rule, the buyer would only expect to receive the commodity he paid for—and nothing for the damage he might have incurred. In fact, contracts follow the general rule of simultaneous (or virtually simultaneous) performance, and equal (or virtually equal) exchange, so that contract law does not protect any exchange outside those limits, hence the practical nonexistence of tort law. A contract law with much more leverage, one that would have given both parties a longer framework for execution, without limiting exchange to a strict principle of “equality,” would have been impeded with the high information costs that such a law would require.

  • 103 Rudolph Peters, ““For his Correction and as a Deterrent Example for Others”: Memet ‘Alī’s First Cr (...)
  • 104 For a modern view on criminal law and its hidden economic benefits, see Richard A. Posner, Economic (...)

89Not surprinsingly, private tort flourished in the domain of crimes, and homicides in particular. For one thing, crimes in Greater Syria—and unlike Egypt which became independent under Muammad ‘Alī and was decades ahead in self-imposed disciplinary measures103—were not prosecuted by the state, and were by and large left to the victim’s kin for either direct retaliation against the defendant, or else for compensation from the defendant or his kin or professional milieu (‘āqila). The fact that an alleged criminal had to pay a fine (diya) to the victim’s kin or else suffer their retaliation creates a different economics of crime from the one we are accustomed to in modern societies.104 First, the transfer of wealth from the criminal’s “family” to the victim’s kin must assume enough wealth-accumulation to sustain such an operation, and thus to allow the bypassing of direct retaliation into economic exchange. Second, such an exchange, and its limitation within the private kin domain, solves the problem of the high information costs that systematic investigative procedures (mostly by state institutions) would have required. Since a court action only began when one of the victim’s kin sued—and usually it was for the sake of a peaceful settlement and exchange (monetary or otherwise)—investigation was informal and left to private parties, while the courts bypassed reliable evidence and the defendant’s state-of-mind, and limited each homicide to objective criteria such as injury requirements and the tool-of-killing (ālat al-qatl).

  • 105 Posner, Economic Analysis, 237.

90When does a wrongful conduct become criminal? Modern systems distinguish between intentional torts and criminal behavior, so that in common law intentional torts “that represent a pure coercive transfer either of wealth or utility from victim to wrongdoer” are looked upon as criminal even though “the state-of-mind and injury requirements sometimes differ for the criminal counterpart of the intentional tort.”105 Considering that tort law is difficult to discern in “civil” anafī practice, is it meaningful then to draw any borderline between tort and crime? The question is difficult considering that, first, homicides were looked upon in the sharī‘a courts as private torts that often involved wealth or utility transfer. Moreover, some homicides, for reasons that remain uncertain, were part of the jurisdiction of the regional councils, and so were thefts, which by and large fell outside the scope of the courts. The issue is complicated further by the fact that neither criminal intent nor recklessness, negligence, nor strict liability, come as an assessment in distinguishing between a crime and an intentional or unintentional tort. Thus, what determines criminal intent in anafī practice is nothing but the tool-of-killing, while strict liability rules over fault liability in homicides: the tool-of-killing thus achieves the prime status of a corpus delecti, a fortiori over the victim’s body. The system also acknowledges the possibility of recklessness and negligence, only if they led to crime, and in that case a homicide was categorized as unintentional killing, qatl khaa’. However, as all the property cases we have discussed show, anafīs had no concern in discerning between tort and crime for either trespassing, unlawful possession, or conversion (which involves the use of force to remove a thing from the possession of its owner), nor was there any material compensation (or otherwise) to the plaintiff. In short, unlawful occupation, ghab, required no more than the restitution of the property to the plaintiff without compensation. Strange as such practices might seem, they become more meaningful once we associate them with their economic components, primarily of which the high information costs, low wealth accumulation, and the importance of kin in such societies. In fact, since damages were neither awarded for loss of the expected profits of a breached transaction, nor for the expected revenues of an unlawfully occupied land, and the standard remedy was restitution, the defendant’s reputation would nevertheless be damaged from fellow kin members and his own locality. As secrecy and individual rights were rare commodities in such societies, knowledge of others was assured on an individual basis, and any misbehavior would prove detrimental for the individual and his or her family.

91Since many of the contract and property cases we have examined in the previous chapters dealt with the taking of property, one difficulty was to distinguish between alleged takings whose purpose was to validate the plaintiff’s ownership, and genuine takings in which the plaintiff was attempting a restitution of a lost property. The former are to be distinguished from the latter as procedural fictions whose only purpose was to extend the limitations of property law through contractual settlements; and procedures to make a waqf irrevocable fell into that category as well. The absence of an effective tort law considerably limits all distinctions between a genuine and a procedural taking. For one thing, when a court discerned an unlawful taking, it only summoned for restitution and fell short of imposing compensation for lost profits or damage. Thus, the borderline between a justified taking and a procedural one becomes very thin as both were not subject to tort law, but only to a law of property which brought the idea that a prolonged occupation could eventually lead to vested property rights. The lack of an effective tort law in civil suits, and the way possession easily mixed with ownership, has led to an array of cases where property rights were formulated as contractual rights, and in all such transactions, strict liability was the rule. Thus, the physical and legal cost of protecting private property, and the safety net that the group (or ā’ifa) provides to individuals in ensuring their well being and protection, in addition to high information costs when it comes to collecting evidence and the like, are among the factors that explain some of the major differences between modern legal differences and older ones.

  • 106 Richard A. Posner, The Economics of Justice (Cambridge & London: Harvard University Press, 1981, 19 (...)

92Such factors also explain why, when it came to crime, only a limited tort law was applied. Thus killing, wounding, or paralyzing a body part were, in principle, all subject either to retaliation or compensation; while slandering, battering, and the like, were not open for compensation (but it was left to the injured party to decide on his or her own—that is, outside the courts—for retaliation), unless, of course, battering led to a bodily damage; and, finally, taking property was subject to restitution without compensation, while nuisance was hardly ever mentioned. Interestingly, then, compensation was an outcome of retaliation, meaning that compensation was in lieu of retaliation, whenever possible, of course. A property taking might also trigger retaliation (as many criminal court documents in contemporary Syria plainly show), but considering that takings were very common—including by the state—systematic retaliation and compensation would have ruined all available resources. One could argue, as Richard Posner did, that for homicides (or the jināyāt, in their fiqh connotation), “The earliest remedy for tort—retaliation, often leading to a feud—yields in time to a system of compensation (bloodwealth, composition, wergelds) paid to the victim or his kin by the injurer or his kin.”106 Many of the homicidal cases in this chapter, from both Beirut and Damascus between the 1800s and the 1860s, point to a settlement through compensation, and, surprinsingly, besides the normative bloodwealth (diya), another form of compensation emerged: one that grants the plaintiff full rights over the victim’s succession. Hence a crime was brought to the attention of the sharī‘a courts only if the victim’s kin sued, which was an attitude reminiscent of modern tort law rather than crime.

  • 107 In American common law, compensation for a crime by the plaintiffs is sought under civil procedure, (...)

93The nineteenth century was a period of reforms, and reforming criminal procedures was as crucial as land reforms; it was therefore no coincidence that both the penal qānūnnāme and the new Land Code were promulgated in 1858. Even though it is beyond the scope of this study to contemplate the outcome of the reforms, the transitional period could be revealing for our purposes, but, in the absence of empirical research, we can only highlight what future scholarship might contribute. From our standpoint, the major change could not be framed more clearly: crimes became in toto an affair of state, meaning that they had to be reported to and then investigated by local and imperial authorities, prior to a trial by one of the “secular” niāmī courts. Thus, besides imposing investigative procedures on each crime, private tort, and compensation became obsolete—at least officially.107 But once the state decides to control crime on its own, there is then an implicit delegation of power from all citizens to the institutions of the state, so that a monetary compensation, if any, would take place through state law. Moreover, compensation is not the major issue anymore since crimes are objectified and a culprit must be found: thus the logic of what integrates society together drastically changes.

The objectivism—or formalism—in decision making

  • 108 Morton J. Horwitz, The Transformation of American Law, 1870-1960 (Oxford: Oxford University Press, (...)
  • 109 Charles Taylor, Sources of the Self: The Making of the Modern Identity (Cambridge, Mass.: Harvard U (...)

94The attitude that was adopted by jurists regarding crimes and homicides was one of “objectivism.” To begin with, there was no concern with the “motives” of the act, but only with its outcome and with the way that outcome ought to be handled in court, but only if one of the victim’s kin pursues the case peacefully rather than opt for direct retaliation. Thus, by focusing solely on the tool of the killing, the judiciary bypassed all kinds of subjective intentions, and moral and religious concerns as well, and opted instead for the outcome of the act itself; that is to say, if the victim was murdered in a particular way, say, by being stabbed with a knife, then that was enough “objective” evidence that the act was considered intentional. It should be noted, however, that such distinctions as “objective” and “subjective” neither occured in the jināyāt books of the fiqh manuals, nor in the other books and chapters related to crime and its compensation. Moreover, the meaning of such terms should not be confused with nineteenth-century debates in some of the western legal systems regarding the place that ought to be attributed to such things as “subjective intent,” “motive” and “will,” debates whose implications were not always similar between Anglo-Saxon common law and the Continent.108 American lawyers were particularly concerned between the gross division within their system of “public” versus “private” law, and associating property, contract, and tort to the latter. With such a view, the “intention” or “will” of the contracting parties became essential in perceiving contract law as “private” in that it manifested the subjective desires of the individuals109 rather than simply being imposed by the state as, for example, was penal law.

  • 110 Richard van Leeuwen, Waqfs and Urban Structures: The Case of Ottoman Damascus (Leiden: Brill, 1999) (...)

95anafīs, however, even though they came close to such distinctions, did not frame them within the same perspective or for similar purposes. In contract law, the priority was given to the alfā over the ma‘ānī in that what was at stake, once the contract had been completed, was what the contracting parties formally promised one another, so that the judiciary wanted to avoid getting beneath the literal meaning of words and statements. However, and in the cases that required this, it was left to the discretionary powers of the judge not to limit himself to the literal meaning, which in practice implied accepting the customary vocabulary of a particular community. anafīs would not therefore totally overcome that distinction between literal and customary especially since, in the absence of a full implementation of the qānūn as a general norm in all the provinces of the empire, sharī‘a law had to associate itself with custom to the point of rendering the distinction between the two irrelevant. The point here is that since the state did not impose its own law of contract, the division between state law and private law did not pose itself at this level,110 and hence the division between what might be called an objective versus a subjective interpretation of social practices (a modern distinction that the fuqahā’ did not perceive as such) had more to do with how much the judiciary would acknowledge customary practices. Jurists thus assimilated the latter as linguistic practices whose implications and meanings judges and muftīs had to decipher and become familiar with prior to any decision-making.

96What we might therefore address as “objectivism”—or formalism in decision-making—expressed itself differently from penal to civil law. When courts were confronted with alleged homicides, judges would typically, if not solely, look for the tool of the killing (ālat al-qatl). To proceed otherwise would have implied a more elaborate and much costlier investigative apparatus of fact-finding, but not necessarily one that would have “subjectivized” the whole process. Similarly, judges opted for the explicit statements attached to a contract rather than, say, the intent of the parties or their performance once the contract was sealed. Courts had therefore to limit themselves on all kinds of oral or written statements rather than on the executory potentials of contracts.

97What was a crime from the standpoint of anafī practice? The texts are categorical that the killing of a person is the most serious of all crimes, to which only blasphemy ranks higher, since it involves the voluntary taking of a soul (nafs) from life. But besides such a general claim, the texts neither come with a list of actions that would be labeled as “criminal” nor does it define “misdemeanors” or minor “felonies.” The other problem, which has been a common concern throughout this study, is to see whether the practices of the courts have “added” anything to what the fiqh manuals have already stipulated. To begin with, a group of illegal activities, such as extramarital sex, wine drinking, and theft, have since early Islam consolidated as “crimes” subject to specific punishments (udūd), so that in this domain anafīs did not have much to add. Moreover, considering that the courts were mostly conservative in the criminal cases that they handled, not only was there very little room for variation, to the extent that, besides homicide and theft, there were practically no cases of extramarital sex or wine drinking, such that the courts added nothing to the regular crime list. The importance of the courts, however, rather stems from the procedural fictions they created to absorb contractual settlements that were the outcome of alleged homicides. Thus, in a way that strangely parallels the contractual settlements and property transfers that we have encountered earlier in civil procedures, homicides metamorphosed as private torts where the plaintiff would request from the defendant either a compensation in the form of a regular diya, or else be guaranteed the victim’s inheritance.

The phantom of the victim and the cycle of debt

98We came across three distinct categories of crimes and felonies: 1) those involving peaceful contractual settlements, which were the subject of fictitious litigations in the sharī‘a courts; 2) cases with genuine litigations, usually involving a muftī’s fatwā, and whose closure could have been a settlement in the form of a diya-payment; and 3) cases that fell within the jurisdiction of the regional councils, which had to look for the right punishment, if not the death penalty. To be sure, such a tripartite division was not unique to crime litigations since it parallels those found in in contracts, land, rent, and tax litigations. However, the normative rules and procedures that derived from the latter might have been different from crimes. Even though anafism looked upon crime in a way similar to property, as an act of usurpation (ghab) over a body, the consequences of which, be it a body or property, had different implications due to several levels of normative rules within the system. To begin with, the anafī assumption that “all body parts have the status of material (exchangeable) goods,” leads to both the notion of diya and its assessment, on the one hand, and the impending procedural fictions on the other. In effect, by postulating that each body part could be assessed on its own and shares a different value from the rest depending on its location, function, and use, the body parts were indeed traded, upon damage, as valuable goods. The similarity, however, between a tangible object and a body part was only limited to the fact that both would achieve the legal status of māl mutaqawwam. Beyond that, the exchange of a body part (araf) with māl was subject to a different set of rules than, say, a regular object. For one thing, a court had to decide whether the damaging act was voluntary or involuntary (or intentional or non-intentional), and whether the soul (nafs) was the main target or not, all of which dictate a set of legal procedures that were absent from the more contractual cases. Furthermore, the procedural fictions covering homicide cases, which were all construed based on charges of voluntary homicide (even though such claims were never proved), brought up another procedural matter: they constituted, in themselves, an act of exchange—the culprit’s innocence for the plaintiff’s right to inherit.

99Mostly construed around fictitious litigations that favor contractual settlements which, in turn, shunned all kinds of investigative procedures, the sharī‘a courts nevertheless had their own share of “hard” cases as well. A case was “hard”—thus, usually, as a rule, demanded a muftī’s attention—whenever the alleged criminal weapon did not provide the decisive evidence that placed the court in front of a voluntary homicide—basically, all non-metallic weapons were indecisive (a metallic weapon might prove problematic too). To be sure, such cases were procedurally very different from the previous ones—those concluded on the basis of contractual settlements. In other words, the specific nature of a weapon—metallic or non-metallic?—on the one hand, and the desire of the victim’s kin to proceed with a peaceful settlement, on the other, were what essentially dictated all procedures from fictitious contractual settlements to more genuine litigations in which a muftī’s fatwā was usually the most decisive factor. Thus, all plaintiffs seeking a settlement that would guarantee their hold over their victim’s inheritance claimed that the weapon used for the alleged murder was a sharply-edged metallic one. In fact, had the weapon turned out indecisive, the defendant would most probably have not accepted the bargain: he might have, had he accepted the accusation, argued for involuntary homicide, meaning that the death was caused by clumsiness and imprudence, or lack of attention. Homicide cases within the jurisdiction of the sharī‘a courts were therefore purely contingent upon the weapon used, and that is what procedurally delineates them from all modern cases. In fact, in modern penal codes, which in the case of Turkey and other Middle Eastern states, are still based on the Napoleonic Code, the weapon itself never comes in as the most decisive piece of evidence, even though its decisiveness cannot be neglected either. Moreover, only by becoming civil parties to the proceedings would injured parties eventually hope to collect damages. By contrast, anafīs grant the victim’s kin de facto rights either to retaliate or else collect damages in the form of a diya. But in the absence of even a minimalist investigative apparatus (that would have undoubtedly required the use of “experts”), alleged culprits were only brought to court by the civil parties concerned, that is, by the victim’s kin.

  • 111 Sort of “police station.”
  • 112 Damascus Majlis, 12/15/23 Shawwāl 1260 (November 5, 1844).

100To be sure, the two head-two body legal system of the Ottoman empire was a reality in both penal and civil procedures, but the implications of such a division become meaningful only once a descriptive analysis has been completed for aspects that would encompass both the penal and civil. In penal matters, the general rule was that crimes fell within the jurisdiction of the sharī‘a courts only when 1) pre-trial arrangements were completed and the parties were ready for a settlement, and, 2) when a peaceful settlement was not possible, thus prompting either a plaintiff to seek the diya in court, or an accused to request vindication for a crime he did not commit. On the other hand, whenever a crime did not fall within those two general categories, it was transferred to the regional councils. That invariably implied punishment, and the councils had to follow a different set of codes to assess punishment. Consider our final case [C 11-15] of a certain fiālib b. Sa‘īd al-Qaṣṣāb who was accused by the Damascus majlis “to have been heated up at the sight of an army officer gazing at a woman in the street. Having first pushed and then took the officer aside in that empty street, a physical exchange took place when they held one another by the neck. There was thus a misbehavior [quūr] charge on both counts. The officer should not have gazed at the woman, while fiālib al-Qaṣṣāb should not have physically attacked the officer, but rather complained against him to the authorities. That constituted on his part an inadequacy and a crime [quūr wa juna], so that he should be punished based on the imperial [penal] qānūnnāme. In chapterthree, article five, of the latter, it is noted that the punishment for this kind of crime should be an incarceration between fifteen days as a minimum and three months maximum. He should thus be imprisoned with his friend ammūd for a three-month period at ‘the house of the officer’111 immediately. As to the officer, his punishment is within the jurisdiction of the military authorities.”112 Could such a case have been adjudicated by a sharī‘a judge? Most likely not. For one thing, since the case was not structured on a plaintiff-defendant division, it seems to have been brought up by the local authorities within a “public misdemeanor” complaint. In other words, sharī‘a courts were at their best within a privately orchestrated khuūma framework, while the regional councils’ jurisdiction practically amounted to everything that the courts were unable to handle. Moreover, the sharī‘a courts were weak when it came to minor misdemeanors, which typically the system assumed that they were left to customary punishment; besides, no sharī‘a code ever regulated misdemeanors, hence the necessity of a qānūnnāme.

101The shortcomings of sharī‘a law and, in conjunction, those of the courts, pose some of the most essential questions regarding Ottoman societies and their legal systems. Even though anafī practice was, throughout the Ottoman period, subjected to the jurists’ ijtihād, the changes were structured around a legalization of few customary practices. The system was saved in part, and its moment of death prolonged, by the qānūnnāme and sultanic legislation, which provided for a parallel legal system; then, second, thanks to all procedural fictions which “extended” the capabilities of the system without touching upon its basic premises. The question then arises as to why no attempt at creating a unified legal system ever came into being throughout the Ottoman period—except, of course, in extremis during the second half of the nineteenth century, with a set of Napoleonic codes. But were the infrastructures of Ottoman societies ripe for such a step?

Notes

1 Probably meaning as soon as they entered the house.

2 Zayn al-Dīn Ibn Nujaym, Rasā’il Ibn Nujaym (Beirut: Dār al-Kutub al-‘Ilmiyya, 1980), 357.

3 Zayn ad-Dīn b. Ibrāhīm Ibn Nujaym, al-Ashbāh wal-naā’ir (Damascus: Dār al-Fikr, 1986), 20.

4 Ibn Nujaym, al-Ashbāh, 14.

5 See supra, Chapter1 on custom.

6 ,By contrast, Cairo, in that respect at least, was much more vibrant, see Rudolph Peters, “Islamic and Secular Criminal Law in Nineteenth Century Egypt: The Role and Function of the Qadi,” Islamic Law and Society 4, no. 1 (1997): 70-90. Cairo enjoyed much more impressive penal procedures and had majālis specifically devoted to that purpose. The first modern penal code, under Muammad ‘Alī, goes back to 1829-30.

7 Even though women in principle were not ruled out from committing a crime and hence showing in the role of defendant, I never came across such cases. The reason will become more obvious as our discussion on crimes progresses.

8 On the Islamic law of homicide in general, see J. N. D. Anderson, “Homicide in Islamic Law,” Bulletin of the School of Oriental and African Studies 13 (1951): 811-28.

9 This seems to be the case in the Moroccan Sharī‘a courts, see Berque, Essai, 105: “Le cadi n’a à aucun moment de pouvoir d’enquête.”

10 On the most common concepts of crime and punishment in contemporary western societies, see David Garland, Punishment and Modern Society (Chicago: The University of Chicago Press, 1990).

11 For a survey of sharī‘a penal law, albeit one that is flawed in terms of its historical evolution, see Muammad Salīm al-‘Awwā, Fī Uūl al-niām al-jinā’ī al-Islāmī, 2nd ed. (Cairo: Dār al-Ma‘ārif, 1983 [1979]). This survey, like many others that addresses itself to a contemporary Arab and Islamic audience, does not debate the complex issue of the historicity of penal law. It rather seeks to “update” penal law to modernity.

12 In the fiqh, meaning (ma‘na) is the “mental image” associated with an utterance/statement (al-ūra al-dhihniyya li-l-laf). In this case, the body is associated with meanings such as blood money.

13 By contrast, men’s breasts were not categorized: could it be because they were perceived as of no specific “utility”?

14 The male organ was referred to as a single organ, as dhakar, literally “male” (still used in modern Arabic as an alternative to the more direct qaīb); by contrast, the woman’s labia were classified, like the lips, as “an organ in pairs” and referred to as the untha-yān, literally the “two females.”

15 Ibn ‘Ābidīn, Radd, 6:575.

16 Ibn ‘Ābidīn, Radd, 6:575.

17 Ibn ‘Ābidīn, Radd, 6:527.

18 Broadly speaking, dalīl could be a sign, an indication, a mark, or denotation; in short, it is what the science of semiology refers to as the “signifier.” In this context, however, dalīl is closer to evidence and proof (bayyina) since the use of a particular weapon is enough proof in itself to establish whether the act was deliberate.

19 Madlūlhas several equivalent terms that all cluster around “meaning”: sense, signification, intent, and denotation. In this context, it is the meaning of the act in its totality which also includes the (subjective) intention of the killer.

20 Ibn ‘Ābidīn, Radd, 6:527.

21 Ibn ‘Ābidīn, Radd, 6:527.

22 Michel Foucault, “L’évolution de la notion d’«individu dangereux» dans la psychiatrie légale du xixe siècle,” in Dits et écrits, 1954-1988, III: 1976-1979, edited by Daniel Defert and François Ewald (Paris: Gallimard, 1994), 443-464.

23 Ibn ‘Ābidīn, Radd, 6:528.

24 The author of the remaining fragment of al-Kāfī’s manuscript is usually identified as al-ākim al-Shahīd (d. circa 400/1009).

25 Ibn ‘Ābidīn, Radd, 6:570.

26 Ibn ‘Ābidīn, Radd, 6:529.

27 “You should know (i‘lam),” like “I say (aqūlu),” usually stands for Ibn ‘Ābidīn’s own opinion on a specific issue. The opinion is in principle posited as an act of ijtihād, or as the outcome of an adjudication between several conflicting opinions.

28 This is when the victim was not deliberately killed: the culprit intended to hit his victim but not to kill him/her. Again, it is the weapon used that establishes definitive evidence.

29 That is, it should be accepted like any other first-hand testimony.

30 Ibn ‘Ābidīn, Radd, 6:568. It is not clear what ahur stands for since the plural of āhir is āhir.

31 Ibn ‘Ābidīn, Radd, 6:558.

32 Ibn ‘Ābidīn, Radd, 6:529.

33 Ibn ‘Ābidīn, Radd, 6:530: “quasi-intent is similar to mistake, except when it comes to wrongdoing (ithm: sin, offense).”

34 Ibn ‘Ābidīn, Radd, 6:528.

35 Ibn ‘Ābidīn, Radd, 6:529.

36 Ibn ‘Ābidīn, Radd, 6:551.

37 Ibn ‘Ābidīn, Radd, 6:573.

38 In the contemporary Syrian penal system, the legal authorities claim, on the one hand, the legitimate use of violence for the great majority of crimes and homicides, but, on the other hand, it leaves to “kin members” the right to settle honor-crimes on their own and decide upon the punishment to be inflicted, which in many cases leads to the killing of the woman accused of dishonoring her family. This is then a case of a modern state institution (whose codes are a direct adaptation from French texts) that delegates to local “civil” forces (such as the family) the use of violence due to an impossibility from the legislative, political, and executive spheres to pose themselves as impartial arbitrators vis-à-vis civil society.

39 Niklas Luhmann, A Sociological Theory of Law (London-Boston: Routledge & Kegan Paul, 1985), 123: “To the extent that the clan is committed to self-help, there are further difficulties in creating and enforcing a clan-oriented law. “Jurisdiction” which is created for the regulation of the clan feuds stops at the threshold of the individual household. The murder of closer relatives therefore often goes unpunished. On the one hand, because the murderer controls his own immediate environment and nobody else could appear as the revengeful party; on the other hand, also because of the legal implications that the murderer has caused injury to himself at the same time.”

40 Walī al-jināya,literally “the guardian of the crime,” or the one(s) responsible for retaliation, seems to be synonymous with walī al-dam.

41 This last part—jihat al-ul, the party seeking settlement, which in principle could only be the victim’s kin—could mean several things. It could imply that only a settlement transforms a punishment into māl; or that such a transformation would only take place once the party that accepted the settlement—that is, the next of kin to the victim—decided to forgo punishment; in this case, however, Shāfi‘ī’s second proposition, unlike the first, places approval on the side of the victim’s kin—unless the jihat al-ul denotes the murderer, which is unlikely.

42 Since the diya was by definition a māl, any additional amount of the same kind as the latter would be considered as unlawful exchange.

43 anafīs were concerned that contracts involving money transfers would end up either under or over their originally conceived value. That could occur for a couple of reasons: either the intrinsic value of money has been modified, or else the currency in question has been dropped from circulation. In either case, the contracting parties should exchange based on the value of the currency “at the time” of the contract.

44 Ibn ‘Ābidīn, Radd, 6:529.

45 More specifically, the ‘āqila, see below.

46 Perpetrator would be more correct since this case is restricted to bodily damage only.

47 Ibn ‘Ābidīn, Radd, 6:530.

48 Muammad Rawwās Qala‘hjī, Mu‘jam lughat al-fuqahā’ (Beirut: Dār al-Nafā’is, 1996), 271.

49 Joseph Schacht, An Introduction to Islamic Law (Oxford: Clarendon, 1964), 186.

50 Ibn ‘Ābidīn, Radd, 6:562.

51 In Arabic: li-anna sabab al-qarāba li-l-maqtūl wa huwa mimmā lā yatajazza. Yatajazza is here the most ambiguous term: literally, lā yatajazza means indivisible, on the basis that a more correct spelling would be yatajazzā’; unless the root is from jazā (“punishment”). But whatever the origin of yatajazza, the meaning is far from clear: What does it mean to say that the cause (sabab) of kinship is “for” the murdered person? Does this mean that the victim’s kin are those who retaliate on his behalf and that such an act cannot be divided among several contenders for the task?

52 The only other alternative, since adoption is prohibited in Islam, is that the child had the victim as father, and the victim’s ex-wife as mother.

53 ash-Shiblī (Abū ‘Abdallah Muammad) (d. 769/1367): Damascene anafī jurist who was appointed as judge in Tripoli where he died. From his books, Āāb al-ammām, and Āām al-mirjān fī akām al-jān.

54 Ibn ‘Ābidīn, Radd, 6:540.

55 Ibn ‘Ābidīn, Radd, 6:551. The eye was described as the “machine of seeing (āal-ru’ya).”

56 Ibn ‘Ābidīn, Radd, 6:555.

57 Ibn ‘Ābidīn, Radd, 6:553.

58 Ibn ‘Ābidīn, Radd, 6:554.

59 The crime of lèse-majesté will be explicitly formulated only in the 1858 penal qānūnnāme, which, in turn, was based on the Code pénal (1810), and from which it reiterates the notion of crime or offense against the state and its institutions.

60 Beirut sharī‘a courts, unnumbered register and pages, 6 afar 1276 (4 September 1859). (Notice the nine-year difference between the alleged crime and the date of the complaint.)

61 On the notion of punctum in “reading” photographs as texts, see Roland Barthes, La chambre claire. Note sur la photographie (Paris: Éditions de l’Étoile, Gallimard, Le Seuil, 1980).

62 Inheritance would have been less obvious had the victim been married with children: in that case, his parents would have been among several possible inheritors, and their right for their son’s succession, including the diya, would have had to be established either by means of a legal order or through a strategy of negotiation with the other kin members and with the defendant himself (see cases below).

63 While the plaintiffs could have been either men and/or women, the defendants were always male. Thus, women were never accused of committing a crime.

64 Regrettably the Majalla does not organize its material into rules and sub-rules, even though the organization of the “general rules” into “sets” would have greatly eased their comprehension as it would have become possible to put them together under different headings.

65 Names and places of residence included.

66 Beirut sharī‘a courts, unnumbered register, case 422, 28 Rabī‘ II 1284 (August 29, 1867).

67 Unclear why that name in particular was mentioned since the person was not involved in the case, not even as witness.

68 The full grade and rank was recorded in the document.

69 Who should have provided such an acknowledgment—the court or the accused? Strange as it may seem, the totality of the cases presented in this chapterdo suggest that the acknowledgment was granted either implicitly or explicitly by the accused themselves. Whenever plaintiffs were short of official documents proving their right to inherit, that did not prevent them, however, to pose themselves as the sole inheritors and be acknowledged as such. But without the legal prerequisites, judges were unable to grant them such rights. Plaintiffs thus exchanged this recognition from their opponents—and that was the main purpose of those cases—on the condition that they would neither present evidence against them nor push them to oath taking. But since the accused enjoyed no legal powers to confirm a plaintiff’s right of inheritance (except in rare cases when the two parties were closely blood related: the accused becomes also sort of witness), the acknowledgment was only implicitly established whenever the paperwork was absent, as in this case: claimed by the plaintiff, and left without proof, but never denied by anyone, hence de facto accepted.

70 Beirut sharī‘a courts, unnumbered register, case 343, 18 Rabī‘ I 1284 (20 July 1867).

71 Beirut sharī‘a courts, unnumbered register, case 548, 4 Jumāda I 1283 (14 September 1866).

72 What was the legal value of such an acknowledgment, and why did it have to come from the accused himself? Why not from a judge or muftī (C 11-2)? Such questions could only be answered in the context of all the Beirut cases in this chapter, all of which explicitly bring the inheritance issue, as if it was the only thing that mattered, thus suggesting that 1) a trade-in seems at work here between restricting the inheritance to the plaintiff(s) and the freeing of the accused; and 2) acknowledging the plaintiff(s)’s right to inherit was probably in need of a legal confirmation, and that was precisely what such fictitious litigations indirectly (as part of a broader ruling on the murder) brought to the plaintiff(s)—something that apparently was difficult, if not impossible, to obtain by other means.

73 The document was also certified by two witnesses.

74 Beirut sharī‘a courts, unnumbered register, case 475, end of Jumāda I 1284 (September 1867).

75 The phrasing leaves it unclear whether the approval by a deputy judge included both guardianship and inheritance, or whether only the former was legally approved while the exclusive right of inheritance, like some of the previous cases in this chapter, was one of the unproved claims put forward by the plaintiff.

76 The lawsuit majlis, majlis al-da‘āwī, could well be one of those regional councils created by the reforms. By that time, in the 1860s, the councils became much more professionalized than the early ones in the 1840s, at the time the reforms had just begun to be implemented, right after the Egyptian withdrawal from Greater Syria. In that case, the above entry, in a sharī‘a court sijill, could be an indication that a homicide had to be reported first to the regular courts, and the crime certified by a team of experts (a novelty all by itself), prior to its transfer to the more specialized councils.

77 Beirut sharī‘a courts, unnumbered register, case 503, 21 Rabī‘ II 1283 (September 2, 1866).

78 Literally, a “palace,” the qar, in Aleppo, Damascus, and Cairo, was a “living room” located in the upper floor. In Damascus, the percentage of homes containing a qar rose from around 6 percent in the middle of the eighteenth century to 19 percent at the beginning of the nineteenth; an evolution that could be explained by an increase of the more prestigious domains within the city, see Brigitte Marino, Le faubourg du Mīdān à Damas à l’époque ottomane. Espace urbain, société et habitat (1742-1830) (Damascus: Institut Français de Damas, 1997), 235.

79 Literally, a “squared place,” denoted in Damascus a squared or slightly rectangular room, usually located in the lobby floor, see Marino, Le faubourg, 229.

80 Damascus 344/133/32-33/18 Ramaān 1252 (27 December 1836).

81 The closest title to this non-identified work is Qāsim b. Qulūbughā’s Mūjibāt al-Akām.

82 Abū-l-Su‘ūd [Ebu’s-su‘ūd] al-‘Imādī (1493-1574), Turkish faqīh and muftī known in particular for his fatāwā, also drafted a monumental tafsīr treatise, Irshād al-‘aql al-salīm ila mazāyā al-Qur’ān al-karīm.

83 Ibn ‘Ābidīn, Radd, 6:541.

84 In the fiqh manuals, the “I say” stage comes after quoting a line of jurists on a specific issue and adjudicating among their opinions. In principle, it thus reflects more the outcome of an adjudicative process than a purely “personal” opinion. Questions (masā’il) left non-debated among jurists were looked upon in the “epistles [rasā’il]” genre that reflected the most personal style a jurist could get to.

85 Ibn ‘Ābidīn, Radd, 6:543.

86 Ibn ‘Ābidīn, Radd, 6:543.

87 ‘Awwā, Uūl, 243.

88 “The defendant [then claimed to have] beaten the victim,” would have been a more appropriate and accurate statement. But the courts, when it came to “quoting” or “paraphrasing” the disputants’ utterances, were sloppy at best, thus making it difficult to differentiate between fact and allegation, first and third person, the opinion of the court and those of the disputants, witnesses, representatives, etc. But was it pure sloppiness? Actually, the language of the courts points to a discursive orientation in which the “individual” was marginalized in favor of the more “impersonal” authority of the courts, so that even the judge-as-narrator was impersonalized (or exteriorized) in the third person, thus giving a detached tone to the narration of each document.

89 As will become clearer later, the testimonies were apparently not delivered in court, and, because of this, the plaintiff had to push for a muftī’s fatwā so that the testimonies be approved.

90 The text wrongly mentions the plaintiff (al-mudda‘ī).

91 That is, one that was quasi-intentional or by mistake. The court, however, did not explicitly decide between the two since what mattered was that intentional killing was already ruled out.

92 Unclear handwriting due to a damaged edge in the manuscript.

93 The beginning of the document explicitly states “exposed to your excellency [al-ma‘rū li-sa‘ādatukum],” without, however, dropping any hint as to who this high-level personality was. The entry, which is right at the front page of the sijill, was probably added later and was one of those unusual cases which required that higher governmental officials, such as the wālī or defterdār, be notified.

94 Damascus 344/1/6/beginning of Muarram 1253 (April 1837).

95 Niklas Luhmann, A Sociological Theory of Law (London-Boston: Routledge & Kegan Paul, 1985), 136: “a judge, who no longer has to simply mediate, placate, supervise the ritual and assist magical legal events, but has to decide, has to represent his decision as his own normative expectation. [...] It is no longer a case of maintaining disappointed expectations, but of maintaining decisions about disappointed expectations.”

96 Damascus 312/48/149/23 Rabī‘ I 1244 (October 3, 1828).

97 Majlis Wilāyet Dimashq, 28 Dhul-ijja 1260 (January 8, 1845), 89-90 (document 123). The ketukhda (or katakhda?) was a higher official, next to the governor and defterdār in the local Damascus bureaucracy.

98 The assumption here is that the hearings took place in a sharī‘a court, even though that was not explicitly stated as such.

99 All cases dealt with in this end-section are from document 123 of the Damascus majlis (January 8, 1845).

100 Colin Imber, Ebu’s-su‘ud: The Islamic Legal Tradition (Edinburgh: Edinburgh University Press, 1997), 223.

101 Imber, Ebu’s-su‘ud, 224.

102 Even today, in countries like Syria and Lebanon, which by and large have adopted the French system of contracts and obligations, but with important variations, still do not have a sophisticated tort law. Thus, for example, a landlord who receives a late payment from his tenant, or a borrower late in his payment, are not compensated for the damages they might have incurred. Similarly, the whole category of “nuisance” is also rudimentary, and complaints against damage incurred from noise or pollution would go astray in such court systems.

103 Rudolph Peters, ““For his Correction and as a Deterrent Example for Others”: Memet ‘Alī’s First Criminal Legislation (1829-1830),” Islamic Law and Society 6, no. 2 (1999): 164-92; Khalid Fahmy, “The Anatomy of Justice: Forensic medicine and criminal law in nineteenth-century Egypt,” Islamic Law and Society 6, no. 2 (1999): 224-71; Jan Goldberg, “On the Origins of Majālis al-Tujjār in Mid-Nineteenth Century Egypt,” Islamic Law and Society 6, no. 2 (1999): 193-223.

104 For a modern view on criminal law and its hidden economic benefits, see Richard A. Posner, Economic Analysis of Law, 5th ed. (New York: Aspen Law & Business, 1998), Chapter7.

105 Posner, Economic Analysis, 237.

106 Richard A. Posner, The Economics of Justice (Cambridge & London: Harvard University Press, 1981, 1983), 192.

107 In American common law, compensation for a crime by the plaintiffs is sought under civil procedure, while criminal law only investigates the crime to determine the offender. This separation between investigation and compensation is not common to civil-code systems which typically tend to mix the two, as is the case in contemporary Syria where the same criminal court rules against the offender and compensates for the plaintiff. However, considering the meager compensations imposed by the criminal courts, plaintiffs tended to drop their cases early, before the verdict, and seek for compensation privately with the defendant’s family, while the case kept running with the niyāba ‘āmma as the prosecutor. Hence, the state has an obligation to follow even if the parties decide not to pursue.

108 Morton J. Horwitz, The Transformation of American Law, 1870-1960 (Oxford: Oxford University Press, 1992), Chapter4. Oliver Wendell Holmes’ Common Law probably expresses that shift more dramatically as he attempted an objectivist approach that jeopardized common assumptions in both civil and penal procedures.

109 Charles Taylor, Sources of the Self: The Making of the Modern Identity (Cambridge, Mass.: Harvard University Press, 1989), has argued that representations of the individual in the western cultures as an autonomous “self” go back at least to Augustine, with Descartes’ ego as its most modern incarnation: “The philosophy of disengagement and objectification has helped to create a picture of the human being, at its most extreme in certain forms of materialism, from which the last vestiges of subjectivity seem to have been expelled. It is a picture of the human being from a completely third-person perspective. The paradox is that this severe outlook is connected with, indeed, based on, according a central place to the first-person stance. Radical objectivity is only intelligible and accessible through radical subjectivity” (176-7).

110 Richard van Leeuwen, Waqfs and Urban Structures: The Case of Ottoman Damascus (Leiden: Brill, 1999), 153, wrongly describes the language of the sharī‘a courts regarding waqfs as a discourse of the state. Besides the fact that such a discourse came directly from the anafī tradition and was therefore not specific to a particular political formation, the establishment of what Marshall Hodgson rightly described as the “military patronage states” in their Mongol, Mamlūk, and then Ottoman versions, only contributed towards promoting sharī‘a law as a quasi-private law, one, which once mixed with local customs, protected the interests of the regional populations from an excessive militarization of urban life, taxation, and the forced exaction of rent by the state.

111 Sort of “police station.”

112 Damascus Majlis, 12/15/23 Shawwāl 1260 (November 5, 1844).

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Titre Figure 11-1. The murderous triangle.
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