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The Crime of Writing

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Zouhair Ghazzal

Chapter 3. There is no crime where there is madness

Texte intégral

  • 1 An alternative formulation is la vérité n’est que mensonge.
  • 2 For a thoroughly critical evaluation of the law‑and‑norms literature, see Robert Weisberg, “Norms a (...)
  • 3 Richard Posner, The Problems of Jurisprudence (Cambridge, Mass.: Harvard University Press, 1993), 2 (...)
  • 4 Posner, Problems, 361.

1The question “What happened?” in a judicial context looks as if its prime concern is the presumed borderline between fact and fiction. In criminal investigations in particular, where lives are often at stake, there is a concern on the part of the judicial authorities to demarcate fact from fiction. But how is that done? One could argue, in conjunction with psychoanalysis, that truth receives its formulation only through fiction (la vérité n’est que fiction),1 and that in such work of fiction, form primes content. Students of law know that every penal code claims that its prime concern is to seek the truth, and that there are clearly formulated rules and procedures for that purpose. Most researchers remain trapped in the rules of law and their normative underpinnings: they are either (1) studied as logical statements that carry specific meanings, and hence would be textually tied together in some global rationalistic pattern, or else (2) they are simply rules to be followed—in principle by every person in the community—while their rational, moral, or social underpinnings (or lack thereof) should be of no concern to the judiciary. To all those who attempt to contextualize the rules of law within their social, economic, and historical contexts, a line of jurists and scholars stands firm that such contextualizations are hardly relevant for judicial decision making and assessing punishment. For its part, by posing the rules of law as norms, the law‑and‑norms school has thought to tackle crime, among other things, in terms of the failure of some individuals to abide by the norm.2 In other words, the law‑and‑norms school has attempted to bring complexity to the notion of the rule of law by strongly attaching motivation and intent to human behavior, while bringing some of the findings of the social sciences to the attention of jurists and judges. In its concern to be scientific, however, the law‑and‑norms school, in all its varieties, has brought more reductionism and parsimoniousness to human behavior than anything else: norms were thus reduced to their most common denominator in order to detect presumed effects on the law. As to the law‑and‑economics school, in the language of one of its most ferocious proponents, if “murder is deliberate unlawful killing,”3 it follows then that “crimes are in effect torts by insolvent defendants because if all criminals could pay the full social costs of their crimes, the task of deterring antisocial behavior could be left to tort law.”4 Criminals (and actors in general) are therefore either self‑deterred through norms, or else through the economics of punishment. The law‑and‑norms school therefore converges with its law‑and‑economics sibling in that both look at crime in terms of social cost: norms are there to be followed, and if they are not then there is a social cost. There is also a cost for implementing norms because people give up some of their individual freedoms to abide by norms—the alternative being nothing but a Hobbesian state of nature.

  • 5 Or, following Claude Lévi‑Strauss in his pioneering studies on mythology, the rules of law and thos (...)

2One can see why the notion of norm has preoccupied legal theory. By framing law primarily in terms of the rules that it engenders—the rules of law (règles de droit)—legal theory argued that the latter are only exceptional and much narrower instances of broader normative values that coexist in society at large. The real rules are those existing in society while the legal rules are only a clichéd version of the latter, and while the former remain implicit and diffuse, the latter are explicit and drafted in codes, as their non‑application is subject to punishment (material and/or moral). Broadly speaking, however, by focusing so much on how norms relate or fail to relate with the rules of law, the norms‑and‑economics schools have missed the opportunity to study how rules of law are used by the social actors (users), and how in so doing economic strategies may be deployed. Norms and rules of law are not simply followed or internalized, as they are primarily represented in language and practice. When, for instance, a crime takes place, witnesses are expected to narrate what they saw. To the crucial question of, “What happened?” witnesses come up with alternative accounts, in the same way that police, prosecutors, and judges would propose narratives of their own, which in turn are based on those of witnesses. The whole process can therefore be looked upon as one of representing norms and rules of law through narratives situated along different social spectrums. Norms and rules of law are linguistically expressed in narratives that are supposed to account for the facts of a happening.5 Once pressed by an investigator or judge, what in effect actors narrate is the normative world that they themselves, their kin, opponents and victims all inhabit: they inform their investigators about rules that ought to be followed, restrictions and prohibitions, or contractual settlements. For the researcher, such a material ought to constitute the prime tool of research, out of which a reconstruction of the “case” in question is made possible in the social actors’ own socio‑symbolic representations. Rather than begin with constructed notions of what the rules of a particular system are, we shall begin with the narratives themselves and examine how they are constructed. Judges often proceed like researchers in that they want, within the shortest delays possible, to transform their cases into factual evidence: the whole case miraculously metamorphoses, after all evidence has been carefully weighted, from a matter‑of‑fact into a verdict. But considering that establishing factual evidence is no easy matter, it would be more rewarding to see what the concerns of social actors truly are, how actors inhabit their worlds, and how they represent their being‑in‑their‑worlds.

What happened?

  • 6 Bruno Latour, “Why Has Critique Run Out of Steam? From Matters of Fact to Matters of Concern,” Crit (...)

3How is it possible then to reconstruct a single criminal case from the viewpoints of the actors themselves? Each crime is an event that has been witnessed by at least two persons: the assailant and victim, with a mysterious third‑party “audience” lurking as the big Other, and to which the assailant may have addressed his crime in the first place. Each crime begins therefore with the act itself, those who witnessed it, with the sentencing finale posing itself as the big Other of “what society wants.” The process that is therefore inaugurated with police and prosecution investigations, with the verdict as its finale, could be summed up in the following: the subjective statements of witnesses—“I saw,” “I heard,” or “I was told”—are transformed through the judicial process into “externalities,” namely, objective entities as factual evidence. The metamorphosis takes hold in the verdict itself, as statements are incorporated into the text of the sentencing, which originally have been uttered in distinct settings in the presence of legal authorities. Like the rules of law, the rulings would aim at reconstructing an objective reality outside the grounded, limited subjectivities of the actors. In sum, the judiciary aims for an objective reality not unlike that of the social sciences model. For the researcher, the aim is not so much one of destabilizing such objective validities, as much as a documentation of the process that inhabits them into their existence, prior to publicly exhibiting them as objective valid truths. To use the language of Bruno Latour,6 we would like to move from the matters of facts, which the judiciary cherishes so much, and upon which final rulings are based, to the matters of concern, namely what constitutes the concerns of actors—beginning with the criminal—in the aftermath of a crime. Once a crime occurs, a web of social relations and practices emerges, upon which the judiciary attempts to reconstruct its case: an object—the “case” per se—emerges out of such entangled objectivities, while the object in question is constructed out of matters of fact which are objectified realities out of the subjectivities of the actors that made them. The judiciary, however, is neither interested in the concerns of actors nor in their entangled narratives and relations. Out of such relations, subjectivities, claims and counter‑claims, it aims towards an objectified reality of the disputed event. Whether we think that for a particular instance, the process was “fair” or “unfair” to the disputants is not the heart of the matter. What interests us here is how the aforementioned process of making law concretely takes shape.

4The purpose of this chapter is to introduce the reader, through the reading of two criminal cases, to the analytical procedure of a case from the moment the police begin to investigate; the investigating judge interviews suspects and witnesses individually in the privacy of his office at the palace of justice; the referral judge report, which constitutes the first synthesis of the case, making it worthy of transfer to the upper Jināyāt court; the postmortem report; at trial, suspects and witnesses are subject to another battery of tests, which are not cross‑examinations per se, as in Anglo‑American systems, but more of a repetition or denial of previous already stated statements, which take‑for‑granted what had already been enunciated in previous interviews to police, prosecution and judges; finally, the verdict itself, which seals the case. In the interim, additional memos would surface, for example, those of medical committees summoned by the judge to evaluate the suspect, or letters addressed by inmates to their counsels or beloved ones. While this chapter proposes how to read such complex material in its totality, emanating from different authors and authorities, the other chapters are more selective, concentrating only on the most outstanding aspects of a case.

  • 7 Sarah Chiche, “La société face à ses malades mentaux,” Sciences Humaines, May–June 2014, 82–85.

5It was during the European nineteenth century that the opposition between the medical discourse (there is no crime where there is madness) and judicial discourse (those who commit crimes must be incarcerated) leaves room for a medical‑juridical continuum, where the judge doubles as a medical authority and vice versa. In 1810 the French penal code introduced the notion of penal irresponsibility. In theory, such a breakthrough enables the judge to plea in favor of not incarcerating a “mad (abnormal) criminal” in a prison cell, but to refer him or her to a psychiatric institution for medical treatment.7 By referring the criminal madman to psychiatric authorities, an unbridgeable breach was opened since the middle of the nineteenth century in the space of juridical reasoning. Gradually, the “crime of character” and psychological assessments have become normative, as our cases in this chapter show: the “character” of an “insane criminal” had to be assessed in relation to the crime that was potentially there—in the “character” itself.

  • 8 See Chapter 1.

6What brings the two cases together in this chapter is the theme of reason and insanity, as both protagonists were labeled “insane” by their counsels to mitigate the verdict and appeal for leniency, that is, to place the death penalty (or at best, permanent incarceration) at bay. Medical committees thus drafted “scientific” reports at the demand of counsels and courts, but whose ridiculous pseudo‑professional jargon made sense only once it received its benediction from the Jināyāt, hence integrated within the system of justice as authoritarian in their own right. As noted earlier,8 it was in later amendments to the original 1810 Napoleonic Code pénal that the notion of démence was articulated to come to the rescue of judges who were unable to decide what to do with murderers who were unable to narrate to the court the reasons for committing their crimes. Understood invariably as dementia, delirium, insanity, or lunacy, démence marks the borderline between an ancien régime where a culprit was publicly executed at the sovereign’s whim, and a new régime where crime and punishment had to be properly assessed, calculated, and made public in light of the culprit’s defense. It is as if the juridical discourse felt emptied when facing criminals who were unable to account for their crimes, hence had to acknowledge medical “scientific” authority to justify such lack. The judge therefore doubles himself as doctor who demands an expertise outside his own and at the same time acknowledges its authority.

  • 9 Or more precisely, the niẓāmī courts that were a byproduct of the Tanẓīmāt, which in Greater Syria (...)

7It is, indeed, that kind of interplay between the juridical and medical that is at stake in this chapter. Syria, like all newly formed nation‑states on the eastern Mediterranean in the post‑First‑World‑War era, inherited the French civil‑law system through the venerable Ottoman Tanẓīmāt.9 What we therefore witness firsthand is that uncanny symbolic exchange between judges who wanted doctors and psychiatrists serving in committees to deliver their final word, and a judicial system trapped into its own discursive practices. More specifically, regarding insanity, the problem arises with defendants who might seem mentally ill, but nevertheless would not meet the legal definition of insanity at the moment they are said to have committed their crimes. For example, defendants would exaggerate a mental impairment, while their counsels would make the claim that they had acted out of rage.

The insane shepherd‑who‑writes

  • 10 Idlib is a city of roughly 200,000 inhabitants located in the north of Syria, 50 km away from the T (...)
  • 11 Idlib Jināyāt 271/1994; final ruling 11/2000.

8 [C3–1] The gruesome killings that occurred on 12 March 1994 in one of the villages in the vicinity of Idlib10 were an outcome of a property conflict,11 that of a land that was a left over (matrūk) near the village school. Hilal (b. 1945) wanted to divide the disputed land with his rivals, while the latter preferred to leave it as an open space for their sheep to graze. The day of the incident Hilal was allegedly at home, which happened to be near the disputed land. When the shepherds came as usual with their sheep, he warned them not to approach his home. A quarrel followed. He went home and picked up his Russian rifle, went back to the land, and when his foe Ibrahim saw him rushing in their direction, he in vain attempted to contain him, but Hilal shot and killed him immediately. He then shot to death Ibrahim’s son Muhammad and his daughter Shamsa (he never admitted killing “the woman”), but missed Ibrahim’s other son ʿAkal because there were no ammunitions left. Hilal and the surviving brother had a fist fight prior to Hilal running away, leaving behind three bodies. Hilal then surrendered to the police, and gave them his rifle. Hilal claimed that his three victims attempted to take his gun and shot them in self‑defense.

  • 12 Syrian criminal courts have the power to reduce the penalties below the ones proposed by the crimin (...)

9On April 2000 the Idlib Jināyāt court sentenced Hilal for life imprisonment, but reduced the penalty, for what it dubbed as “the extenuating circumstances (al‑asbāb al‑mukhaffifa al‑taqdīriyya),”12 to 20 years with hard labor. In its final ruling the court quoted statements from dozens of witnesses, some of which allegedly witnessed the crime from neighboring lands and homes. It also cited the defendant’s first deposition to the police:

The victims Ibrahim and his two sons and daughter have left their sheep graze over my crops. When we were arguing, Muhammad grabbed me from behind while his brother ʿAkal hit me with a hammer on the face. I fell on the floor. My son Anwar came with a gun, with which I fired three warning shots in the air. But the victim Ibrahim pushed his sons to attack me. I therefore fired towards Ibrahim, and when his son Muhammad tried to take the rifle from my hand I shot him too, then I shot the other son… .

  • 13 I consider an account as a more preliminary form of a narrative, or in other words, a narrative is (...)
  • 14 They also do not seem to have been taped in the first place.
  • 15 Which acts as the supreme court of the Syrian judiciary, an equivalent of the French Cour de Cassat (...)

10As each case unfolds with the classic police investigation, our starting point will be the depositions to the police right after the murder. In the Syrian penal system, depositions to the police must be looked upon as second‑degree narratives, or as narratives based on prime accounts,13 simply because the original depositions in their question‑and‑answer colloquial Arabic form are seldom reported.14 The police are therefore already constructing their own narrative, in the form of a handwritten procès‑verbal, which omits verbatim utterances, as statements come carefully filtered and polished in official Arabic for the purposes of presenting the case to the prosecution and higher courts. As a result, such depositions take disproportionate importance for the final ruling, even though, according to the mighty Damascus Naqḍ,15 they should not (more on that later). The contrived nature of the police depositions (or the “seizure form,” waraqat dabṭ, as they are commonly known) should not discourage us from looking beyond their surface. Let us see how that works.

11The “deposition form” (or “seizure sheet”) begins with the police being informed on the crime. The form explains how the information was received, the first contacts with the crime scene, witnesses, and preliminary material evidence. It then goes on to question the first witnesses available. In this instance, after interrogating the village informer and following a full description of the crime scene, the first victim–witness was interviewed the night of the murders.

  • 16 Such an expression generally means that the witness did not possess any identity card, not only at (...)

My name is ʿAql Ibrahim, born 1962, from the village of al‑Waridah, the farm of al‑‘Adliyyah, married and illiterate, do not carry at the moment an identity card,16 Arab Syrian.

  • 17 The first‑person plural is typically used as a counter‑balance to the “I” that narrates in an attem (...)

I inform you that we17 the inhabitants of the farm we own a wall for grazing (jidār li‑l‑raʿī), used by all people of the village. Today we were grazing our sheep in front of the home of the defendant Hilal, which is close to our land and north of the school. In this location where we are now, where my relatives (ahl) are, it was there that the defendant Hilal was sitting in front of his home, came to me and said: ‘Stop mingling with me.’ I don’t know why he said that. He tried to hit me, but my brother Muhammad pushed him away. He screamed at us: ‘That’s fine you sluts!’ He went home to pick his Russian rifle and tried to hit us. But when my father attempted to force him back he came to us charging his rifle. At that moment he fired several shots and hit my father who fell on the floor, then headed south towards my brother Muhammad and shot him too. He also killed my sister Shamsa and attempted to shoot me, but there were no bullets left in the rifle. I went after him, but my nerves broke down. I couldn’t catch him. I request a full investigation, posing myself as a personal plaintiff (muddaʿī shakhṣī) against Hilal al‑Khalif for having killed my father Ibrahim, my brother Muhammad and my sister Shamsa. That’s my deposition.

  • 18 Punctuation not in the original Arabic.

The deposition was read to him, he accepted and signed it.18

  • 19 On the performative side of speech acts, see J.L. Austin, How to Do Things With Words (Oxford Unive (...)

12That was the deposition of one of the victims who, by his own account, managed to survive simply because the assailant had no bullets left. The syntax is here typical of depositions in general. Since the questions posed by the police were not included in the text, only the answers were left, surviving for the most part in the first‑person singular form. Instead of the original question‑and‑answer, the deposition achieves a first‑person “narrative”: it flows smoothly, describing the events that led to the alleged crime and its aftermath. The tone is a bit formal, unemotional, comes directly to the point, and seems contrived in what it is attempting to convey. Moreover, the transcription, besides precluding the original line of questioning, has reshaped all utterances in official Arabic. Hence the transformation is a double one: no questions and answers and no colloquial Arabic. Some utterances may have also been cut altogether. In sum, the performative side of the speech act is considerably muted, narrowing the use of language at best to its descriptive level.19

13Before we go more fully into the deposition as a form of witnessing, I would like to bring forth two additional depositions, one by an “independent” witness, and the second by the defendant himself.

14ʿAziz ʿUmar al‑Shaykh was introduced, immediately after the previous deposition by one of the victims, as a “witness to the incident (shāhid li‑l‑ḥādith)”:

  • 20 I am translating maghdūr as victim, even though maghdūr (from the verb ghadara or ghadira) carries (...)
  • 21 In all quoted texts from the Jināyāt courts, emphasis in bold characters (and at times in italics) (...)

My name is ʿAziz b. ʿUmar al‑Shaykh and ʿAysha, born in 1977, from the farm of ʿAdliyyah, I do not carry at the moment a personal identification card, single, literate, worker, and Arab Syrian. I inform you that this evening I was sitting with the victim20 Muhammad Ibrahim al‑Hasan in front of the house of Hilal al‑Khalif, located roughly a 100 meters from us. He came to us wishing that the victim Muhammad leave away with his sheep. Muhammad replied that this land is for grazing for all the people of the farm, and we’re one of them. As they exchanged harsh words, Hilal went running home, pouring insults over Ibrahim and his kids. Ibrahim the father went after to stop him, as Hilal stood by the door with a Russian rifle. But the killer Hilal shot him to death three times. When ʿUmar approached him he shot him to death too, emptying five bullets in his body without even talking to him.21 He then shot and killed Shamsa who was standing east to her brother. But he couldn’t shoot ʿAkal because the rifle was empty. Hilal got back to the victim shooting at him directly. The causes have to do with grazing. This is what I’ve seen and know and that’s my deposition.

His deposition was read to him, he confirmed and signed it.

15We now come to the accused Hilal’s statements.

My name is Hilal b. Khalif al‑Khalaf, born in 1945, resident in the al‑ʿAdliyyah farm, I carry an identification card number X, issued in 1985, married and literate, my job is a worker, Arab Syrian.

  • 22 Used interchangeably with ʿAkal.

I inform you that this evening I was sitting in front of my house at the ʿAdliyyah farm, north of the school, when I saw Ibrahim al‑Muhammad, his son ʿAql22 and daughter Shamsa leaving their sheep graze over my plantations. I went to ʿAql and told him ‘Stop mingling with me.’ He replied ‘You’re a sick man and I don’t feel fighting with you.’ Then came his father Ibrahim who told them ‘Slaughter him,’ because I warned you a long time ago to leave the farm. ‘Aql then came back to me and beat me up. I told them ‘I’m going to complain.’ His sister Shamsa separated us. His brother Muhammad showed up and grabbed my mouth, then ʿAql came back and hit me with a hammer. I fell on the floor and managed to escape. I went home and fetched a Russian rifle that I had filled at home. I went out and shot three times up in the air hoping that they would run away. But they’ve assaulted me while their father Ibrahim was encouraging them to do just that. He told them ‘Slaughter the dog!’ Ibrahim and his son Muhammad attempted to take the rifle from me, and I told them for the last time ‘For God’s sake leave!’ But they kept coming at me. That’s when I shot Ibrahim several times in self‑defense. When he fell down his son Muhammad assaulted me, and we were only a meter apart, and while he was trying to take the rifle from me I shot him several times. I then headed east and started shooting randomly. I don’t know if I shot Shamsa…I ran away north and gave myself up to the police at al‑Buwaydir…

16The three accounts, even though emanating from three different “witnesses”—a victim, an “outside” witness, and the assailant himself—are remarkably similar, if not in form, style, and syntax. Assuming that the police did not “play” with the content of the depositions, there nonetheless seems to be an unconscious, if not deliberate, attempt to create cohesiveness from accounts differently situated. As we will come to realize, which is fairly normative in Syrian penal procedures, there will be a heavy reliance in all subsequent memos and reports, including the final verdict, on the original police testimonies, no matter how much new evidence has been collected since then. It is as if forging cohesiveness is one of those hidden normative rules in the penal system: we need to know from day one what happened! Rather than come up with divergent loose statements, the police are searching for a “narrative” structure from day one. Notice, for instance, how all three “witnesses”—even the two directly implicated—were not pressured to give more: in other words, they were not pressed with a hard line of questioning to detect inconsistencies. The way depositions are constructed is not only related to the line of questioning that police, prosecution, and courts adopt. What witnesses decide to say or not say in the presence of a police officer, prosecutor, or judge, is related to a host of circumstances. People learn what to say and how to utter something when they are in private or public. Even though unconscious normative rules guide ordinary talk and discourse as well, and while trespassing such rules is not as remote a possibility as one might think, actors do normally avoid the cost of such option. If actors are not that free to say what they want to say, or “what is in their best interest,” it is because they are part of a socio‑symbolic order to which they feel compelled to belong, and which provides them with the security that they need. Consequently, when a crime happens in a community, even though crimes are generally not routine occurrences, describing or narrating such a happening, being mediated by the rules of speech and language, is subject to all the societal pressures that one could imagine. What is therefore unsaid may prove even more relevant than what is said. For the researcher, detecting silences, hesitations, contradictions, and blanks in what actors have uttered when examined may prove even more important than analyzing the utterances themselves.

  • 23 Paul Ricœur, La mémoire, l’histoire, l’oubli, Paris: Seuil, 2000, 203ff.

17As Paul Ricœur has pointed out, the activity of witnessing is crucial for both the judicial process and historiographical writing.23 In historiographical writing the document stands as proof (evidence) that what the historian claims to have happened effectively took place. In other words, the document is not only what brings forth evidence, but it is what stands in lieu of the act of witnessing per se. The document is therefore the witness. Historians thus typically make use of documents to construct factual evidence. Such factual evidence is then narrated both in its temporal and logical (rational) elements, out of which narration would emerge into more abstract factual constructions.

18Judges like historians find themselves in the situation of searching for factual evidence to narrate their final ruling. It is in effect up to judges to select from the myriad of utterances, depositions, narrations, and discourses left by witnesses and official authorities, the ones that will ultimately survive the test of factual evidence: which of the “facts” will become factual evidence, and which ones will be relegated to the dubious role of personal testimonies, unreliable data, and tampered with evidence? It is up to judges to sanctify the personal testimonies of witnesses into factual evidence that has been rigorously tested through judicial procedures, and which will be ultimately quoted in the verdict as objectively valid. The researcher must therefore keep an eye on how the individuated personal narratives of social actors—all of which using the “I” form of witnessing—either metamorphose into a more “reliable” account approved and endorsed by the judiciary, or else are forgotten and invalidated.

19Following once more Paul Ricœur, we can discern three different stages in the making of historiographical and judicial narratives.

  1. The factual phase. Facts are valued for their own sake: they are verified and assessed, prior to being approved as factual evidence.
  2. The explicative phase. The approved facts are brought together in order to causally explicate the making of an event.
  3. The representative phase of historiographical narration and writing. The primacy of representation of an event or happening often subdues steps (1) and (2) to the final operation of narration in a premature shortcut operation.
  • 24 Based on a hundred closely examined cases from the Idlib and Aleppo Jināyāt courts in the 1980s and (...)

20For our purposes here, that of the construction of narratives and their inner logic, it is worth mentioning that only judges assess the facts, while police and prosecutors are supposed to present (not re‑present) the facts to the judiciary. Since judges are the ones who have access to the totality of the dossier, they develop that ability to compare utterances, statements, and depositions prior to deciding what ought to be included as a matter of fact in the last instance—that of the sentencing. In principle, therefore, the police and prosecutors ought to do their best in presenting as much factual evidence as possible, and from a myriad of viewpoints. They are neither supposed to interpret anything, nor ground the event/happening in its totality. In other words, police and prosecutors are supposed to understand rather than interpret, as interpretation is a more complex stage than understanding, which consists in causal links between phenomena. An ideal police officer or prosecutor would push the interviewing process to its limits, and while realizing that actors deploy all kinds of strategies when pressed for more answers, they would also doubt what actors present as self‑evident and acceptable. In practice, however, we have noticed24 that depositions tend to be blatantly repetitive, and the cycle of repetition which begins with the police, perseveres with the prosecution up to the higher courts, as if the representation of the event has already taken shape from day one, ignoring what Ricœur has labeled as the factual and explicative phases.

  • 25 Except when the accused dies under torture, as evidenced in C5–4.

21This rush towards the final stage of representation seems to have alerted many observers. To begin with, lawyers routinely accuse police officers for having maltreated and abused their clients, or for haphazardly assembled facts. Quite often witnesses, once in the presence of a prosecutor (or investigating judge), deny in toto their earlier statements to the police, either on the basis that they were brutishly intimidated or tortured, or else that they were not under full control of their mental faculties. Defendants who, for example, had upon their arrest acknowledged any wrongdoing, might fully deny later when interviewed by an investigating judge. All such instances are fully documented, and the documentation is always available to judges in the dossier that circulates around, but is seldom seriously taken into consideration, and more importantly, no one seems to think that it is worth investigating allegations of torture or rape,25 and at no point do we witness much willingness to push police and prosecutors to investigate more thoroughly.

  • 26 Interviewed in Aleppo on 17 June 2004.

22All such negligence—assuming, of course, that it’s only a question of “negligence,” if not pure incompetence and ignorance of the procedures—is further buttressed by the first systematic report of each case, namely what is known as the “iḥāla judge report.” The iḥāla judge (“referral judge”) is a kind of rapporteur, someone who grants his approval of the facts presented thus far by police, prosecution, and medical authorities, and accordingly would judge whether the case ought to receive the full care of the Jināyāt. He therefore drafts a preliminary synthesis, narrates the facts, and concludes with further proposals on how to proceed with the dossier, and the kind of punishment the defendant(s) ought to receive. The problem, however, is that by the time the referral judge drafts his report, the case is almost sealed, meaning that no surprise is to be expected until the very end. What ought to have been preliminary reports by police and prosecution are now endorsed by the referral judge and taken for granted. Once this stage is achieved, it would be difficult to imagine that the case would take an unexpected turn. Crucial in this respect is the indirect endorsement of the preliminary police reports. When I reported to retired judge Ḥannā ʿAbd al‑Nūr, who was at the head of the Damascus Naqḍ courts in the late 1990s, my concern regarding the way the police investigates, its brutality and rough manners, and how those preliminary investigations metamorphose into validated facts upon the trial hearings, he boasted that “as judges we do heavily rely on the police reports. We generally assume that what comes in those reports has some truth in it … The police usually manages to get the truth from the mouths of the plaintiffs, suspects and witnesses in one way or another … even through intimidation or torture … We find such reports reliable enough for our final rulings. …”26

  • 27 ʿAbdul‑Qādir Jārallah al‑Alūsī, ed., Majmūʿat aḥkām al‑§Naqḍ fi qānūn uṣūl al‑muhakamat al‑jizāʾiyy (...)

23That is not the way, however, the Naqḍ courts perceive police investigations. Now that the Naqḍ rulings are regularly compiled and indexed,27 it is possible to appreciate how much the higher Naqḍ courts in the last couple of decades have been incessantly reminding judges that what witnesses utter in the presence of police officers have no value per se, unless the witnesses reiterate what they had previously uttered during their interrogations in the public hearings of the Jināyāt.

  • 28 Majmūʿat, 1:580.

Rule 406. The confession (iʿtirāf) in the presence of police officers should not be considered as evidence (dalīl) unless it has been confirmed by an additional confession in the presence of judicial authorities (al‑qaḍāʾ), or it has been proven sound (saḥīḥ) and in congruence with other evidence of the case.28

  • 29 Majmūʿat, 1:613.

Rule 421. The defendant’s statements in a police deposition, even though such depositions in criminal matters are for the sake of information (maʿlūmāt), must be taken into consideration, including the defendant’s confession in the police deposition, even if the defendant withdraws his statements later in the presence of an investigating judge or at trial. Inclusion of police statements for the verdict should only occur once the court feels comfortable (iṭmiʾnān) with such factual evidence, having already corroborated it with further evidence, which is part of its objective power (sulṭatu‑ha al‑mawḍūʿiyya) which grants its autonomy, as long as it assesses (tuqayyim) evidence on solid grounds.29

  • 30 Majmūʿat, 1:625.

Rule 426. Police depositions in criminal matters are only ordinary information (maʿlūmāt ʿādiyya), while an accused’s preliminary confession (iʿtirāf awwali) should be corroborated through other evidence, in particular if it turned out that it was delivered by the interviewee through violent and harsh means.30

  • 31 Civil‑law systems have their own ways of working through precedent, namely, by codifying past rulin (...)

24The Naqḍ rulings are abundant with rules of that kind,31 either framed with slight variations, or else redundant in their substance, even though at times contradictory and confusing. The general tendency, however, is not to give the early statements by plaintiffs, defendants, and witnesses, more than what they deserve. They ought to be taken for what they are as preliminary information collected by the police in the aftermath of the crime for the sake of paving the way to prosecution and Jināyāt. But in light of the three steps proposed by Ricœur to understand the process of historiographical and judicial writing, what characterizes the system is a bypassing of thorough data collection and analysis and a rush towards representation, which is a rush towards judgment. Suffice it to note at this stage that the primacy of representation de facto implies that from the early stages of the investigation “raw facts” are transformed into “factual evidence.” To pursue the matter further, we will follow Ricœur more closely on the crucial issue of witnessing.

  1. The basic premise behind witnessing is to discover how an autobiographical account (récit) metamorphoses into an objectively accredited narration. The main purpose of the autobiographical récit would be to re‑assert the factual reality of the witnessed event: is the author–narrator a trustworthy person? In the penal system, witnesses in criminal matters have their “kin” background routinely checked: what kind of “relationship” do they nurture towards the main disputants? But if kinship is overtly checked prior to an investigation, and explicitly indicated by the investigating judge on each “interrogation form,” the biggest drawback remains the “autobiographical” element in witnessing. As we shall see later, the autobiographical side becomes more visible, for instance, in the memos addressed by the defendant to his attorney, while remaining muted in the first police deposition and in later statements addressed to officials. In effect, if many of the witnessing accounts seem deliberately staged, it is not because of a cover‑up or conspiracy, but mainly due to the heavy restrictions that social actors place upon themselves. It is indeed as if they witness from the viewpoint of their “group” rather from the standpoint of the “I.” Similarly, police and prosecution behave with a group‑like mentality, attempting not to trespass the borderlines set by their communities. The assumption here is that the more a society becomes individualistic, the more actors are prone to manifest their auto‑biographical side.
  2. By the time the actor metamorphoses into a witness, he or she learns—or develops that innate ability—to narrate what is relevant. It is at this stage that the “I” which has witnessed the event withdraws behind the dubious status of an “objective witness” whose aim is to account for what is relevant from the judicial and/or social perspective. What we often notice is a deliberate rush towards representation and judgment, which in the final analysis conceals as much of the “I” as possible. In other words, by rapidly aborting and placing pressure on the process of fact finding, not only alternative representations are avoided, but all kinds of individualistic accounts are also evacuated.
  3. The witness‑narrator invariably narrates as if a third person is present, besides himself (herself) and the prosecuting official authority or judge. In societies where kin feeling is predominant, the third person tends to represent the normative values of the group directly or indirectly implicated in the crime in question, thus diminishing the possibility of the “I” to surface at the forefront, at least in the presence of an official authority. In this case, the attorney or some other privately appointed authority may assume the role of a confidant for the accused or witness. Moreover, since the receptor will not necessarily perceive the narration in the same eyes as the narrator, the investigating authority tends to deploy strategies to demarcate itself from what witnesses have stated, in preparation for the final verdict. But those same authorities, however, will also have to convince the social actors that their version of the story has been objectively validated, thus pushing them to borrow statements from the various parties involved in the conflict. That is particularly true whenever the community in question is bound by strong kin norms and the like.
  4. Considering that a narration is a structured account of an event, which may carry a meaning and purpose, the issue that is relevant for our purposes is whether it would be beneficial for analytical purposes to push for the distinction between “raw accounts” and “structured narratives.” During an investigation, actors are seldom permitted to freely narrate on their own, since their utterances are framed within a question‑and‑answer formula. Their statements tend therefore to de facto fall into isolated fragments, which police reports artificially piece together into first‑person narratives without any transcription of the original utterances. Only in the second stage, when actors are in the presence of an investigating judge is the question‑and‑answer mode kept in its original form. And even here the utterances are re‑transcribed into an official Arabic, which, once more, metamorphoses the original into something else. In short, what we notice all along is a willingness to transfer each case to the Jināyāt in sets of already articulated narratives. But whose narratives are they? When, under special circumstances, we get a rare glimpse of actors narrating on their own, the picture may shift in another direction, pointing to other concerns, different at least from the factual evidence constructed by the judicial authorities. Finally, a parallel issue ought to be considered, regarding that of a possible distinction between narrative and discourse: when a narration is constructed in such a way that it intends to go “beyond the fact” into a self‑articulated meaning (e.g. social connotations), it is then constructing a de facto discourse of the witnessed event. Ricœur is careful, however, not to push too narrowly the distinction between narration and discourse: “The attested fact must be meaningful, which renders problematic a harsh distinction between discourse and narration.”32 For our purposes here it may be useful to speak of a “discourse of justice,” while keeping the possibility of individual or collective discourses by social actors an open one.

25The encounters that plaintiffs, defendants, and witnesses have with investigating judges immediately tag along police investigations. But while police interrogations of witnesses are all filtered in a single report (known as the “seizure sheet,” waraqat dabṭ), the depositions drafted by judges are on one‑to‑one basis. Consequently, as each witness receives his or her own individual account, the question‑and‑answer style is better preserved, even though the attempt to bring cohesiveness to the case remains as strong as before.

26One of the witnesses (b. 1937), described as “close to both sides” in the qarāba field, had his home located close to the crime scene.

  • 33 Used interchangeably with ʿAql in all documents.
  • 34 Dated 2 April 1994.

I was at home during the fight, which is only 300 meters away. I heard the sound of shots. I went out and my son gave me a ride on his motorbike. When I reached the scene of the fight I saw ʿAkal33 al‑Muhammad beating the defendant Anwar b. Hilal with the rifle’s magazine over his head. When I asked him why, he said that his father killed my family (ahl). I saw the bodies on the ground in front of Hilal’s home, and the defendant Hilal a hundred meters away, who was joined by his son Anwar and his wife. They all ran away. A day before the incident I saw the defendant Hilal drinking tea with the victims. The causes of the dispute (khilāf) is that there is an uncultivated land (arḍ bor) that we call “the wall,” estimated at six hectares, and the victim used to summon the defendant Hilal not to graze his sheep on the land. The defendant Hilal also summoned the victim not to come with his sheep to the wall zone. I think that’s the cause of the dispute.34

27Such single‑passage statements are quite common when it comes to depositions uttered in the presence of an investigating judge in the privacy of his office located in the Palace of Justice. As the statements are seldom followed by a more thorough examination, the information carried in such depositions replays the same themes of the police reports, adding slight modifications. At times, however, the witnesses seize the opportunity to completely deny what came in the police report, on the basis that they were either under the shock of the incident or tortured and intimidated. But here again the “accounts” are quasi‑complete, de facto taking the role of structured narratives, in particular that the implicit general policy of investigating judges is not to disrupt the fragility of the police depositions.

28Another witness, also introduced as “close to both sides (qarīb al‑ṭarafayn),” was interrogated by a judge.

  • 35 Dated 5 April 1994.

The day of the incident I was 200 meters away from the defendant’s home Hilal. I saw him in front of his house, and the three victims and the plaintiff ʿAkal were close by grazing their sheep in front of the defendant’s home Hilal. The defendant Hilal summoned the plaintiff ʿAkal to move out of his space with his sheep. He refused and they started a fist fight. The victim Ibrahim said: ‘Shame on you!’ And he shouted: ‘Let us behave properly as all people do.’ Suddenly the defendant Hilal entered his house and went out with a Russian rifle in his hand. Right in front of his home he met with the victim Ibrahim and shot him to death. Close to him were his three kids: ʿAkal, Muhammad and Shamsa. He shot to death Muhammad and Shamsa, then pointed his rifle towards ʿAkal but no bullets were left. He dropped the rifle on the ground and ran away. As to the defendant Anwar al‑Hilal he was working on the land cultivating potatoes and has nothing to do with the fight. But when he heard about the fight he followed his father out of fear for himself. I add that a day prior to the fight the two sides did spend an evening together, and that there were no disputes among them.35

29There were more accounts like the ones quoted above. If they look similar it is because neither police nor prosecution were aggressive enough to work out the details and hammer the witnesses on subtle discrepancies or inconsistencies. If we look at the five accounts as specimen, including that of the defendant, we realize that they add little to one another as long as we remain at the macro level of events. But as soon as we go into the details the discrepancies soon begin to surface, in particular regarding the defendant’s son, and alleged utterances and provocations by the victims prior to their being shot by Hilal, not to mention the status of the village “wall,” and the location of the victims when they were shot. But do all such details matter? The crime seems simple enough not to go any further: after all, the defendant gave himself up and confessed his crime on the spot, only denying killing Shamsa (we shall see the relevance of such denial later). So why bother? From its early days, the case seemed already clear cut and locked into Hilal’s full responsibility. It became a question of deciding on the punishment and compensations for the victims’ heirs. Do details therefore matter? And which details? The actors’ obstinacy at ruling out incongruent details stems from an inner feeling that “all is clear.” A shepherd shot to death three family members over an alleged land dispute and then ran away: in the actors’ mindset, not much could be done to “save” the defendant. But the real issue here is the withholding of details, minute descriptions, and data that may not fit with the already constructed whole. The actors behaved like researchers who limit utterances to statements and behaviors that would fit the outcome of their research, while a more thorough investigation would have pointed to dissonances that would have manifested the endless variations to the same event. To quote Bruno Latour,

  • 36 Bruno Latour, “When things strike back. A possible contribution of science studies,” British Journa (...)

If social scientists wanted to become objective, they would have to find the very rare, costly, local, miraculous, situation where they can render their subject of study as much as possible able to object to what is said about them, to be as disobedient as possible to the protocol, and to be as capable to raise their own questions in their own terms and not in those of the scientists whose interests they do not have to share!36

30What Latour admonished to his fellow social scientists could be reiterated regarding actors in general, including in our case witnesses, policemen, prosecutors and judges. We will encounter some disobedience later, but not in any of the official documents.

The criminal case as a legal artifact

  • 37 Émile Durkheim, Leçons de sociologie, Paris : Presses Universitaires de France, Collection Quadrige (...)

31A common mistake in criminal matters, and which goes back to a notion of the “social” that owes much to Émile Durkheim,37 would be to assume the existence of a broader “cohesive society” whose normative values the actors obey or fail to obey. For instance, when faced with a criminal case whose witnesses and prosecutors seem reluctant to go beyond certain facts, we attribute such a behavior to a presumed “norm” within “society” at large, that is, the community in question. The problem with such an approach, however, is that we will fail to see how a criminal case concretely proceeds. What in effect holds a given “society” together are not simply the presumed “norms” which push actors to behave in a certain way, whether predictable or not, but all kinds of networked experiences which at some juncture translate into objectified “artifacts” or “things” through which actors deploy their strategies. Once a crime takes place within a community, it immediately translates into a “case” in the hands of the police, who in turn begin to transform it into a “file” with documents, depositions, reports, photographs, procedures, and hearings. In other words, a routine crime, which initially has no particular shape or structure, and per se does not causally obey any “social norm,” is soon transformed into a method of inquiry, as something that appears to exist only as an artifact because of the way things, data, and events are examined. It is the existence of a multitude of such artifacts that would constitute the solid ground for the presumed cohesiveness (or lack thereof) of a “society” of individuals and groups.

32“In the name of the Arab people of Syria”: thus begins the referral report, a statement that is there to remind us that justice is both majestic and always performed in the name of the people. Now eight months after the crime, amid police and investigating judge interviews, the dossier begins to receive its shape. It is in effect in the handwritten referral report, on November 1994, that all previous depositions and memos converge into a comprehensive structure that is there to influence the case until its very end. The case now receives a purpose, an assessment of the facts, an elucidation of who said what and which accounts ought to be taken more seriously than others, which of the accounts overlap (an indication that facts are corroborated), and, finally, the judge’s proposals to go on with the case: who should or should not be punished, and what should be the regiment of punishments and compensations. Experience shows that the referral reports are very decisive, and that one is to expect little change from this point on either in terms of factual evidence or the defendant’s status. A case could still drag on, however, for years in a row for a variety of reasons, chief among them is the difficulty of getting the witnesses on time during the court hearings (see below), even if no new factual evidence is brought into the picture.

33In what may seem like a pure exercise of judicial authority, the judge re‑orders the case around seven points:

  1. Stop the trial of the defendant Anwar b. Hilal for first‑degree premeditated killing and participating in it for lack of evidence.
  2. Pass all relevant papers to the district attorney to pursue all necessary procedures, and to the referral judge, in order to proceed with the accusation of the defendant Hilal Khalif al‑Khalaf with manslaughter (qaṣd) of more than two persons, based on article 534, section 6, of the penal code, and the accusation of an attempt to intentionally kill based on article 533, section 199, of the penal code.
  3. Try him at the Jināyāt court in Idlib.
  4. Proceed with the suspicion against the plaintiff ʿAkal Ibrahim al‑Muhammad for allegedly committing the felony of bodily harm, based on article 540 of the penal code.
  5. Try him at the Idlib Jināyāt court.
  6. Charge the defendants ʿAkal al‑Muhammad and Hilal al‑Khalif for the military fee.
  7. Once the sentencing is finalized, forward the file to the military judiciary in order to investigate the illegal possession of military firearms attributed to the defendant Hilal al‑Khalif and Faysal al‑Khalaf.

34Now the tone is set for the case. The referral judge is ordering all kinds of authorities to do what he just told them to do. He then, in a single 20‑line paragraph, states all the known facts of the case, prior to listing all witnesses in conjunction with the statements attributed to them. The third section of the report consists of a “legal discussion” of what the second section revealed in terms of accounts, individual statements, and evidence: facts are assessed and some of them are outright rejected. In the final section the judge pushes forward his proposals: the defendant must be tried for his killing of three persons and punished accordingly. In sum, all that has been done and said in the previous eight months receives its preliminary structure: the method of investigation is now set, statements and facts have been assessed, and the results that will follow will be an outcome of the deployed method. But whether the judge is simply “stating” the known facts, or “discussing” them in light of the penal code, he is in fact ordering all actors to restrict themselves to the contents of his report. The case has fully metamorphosed into an objectified artifact: lawyers from both sides of the spectrum will from now on only debate the pros and cons of the report; for judges it provides them with a structure without which they would not be able to survive.

35The section on “legal discussion and its application (fi al‑munāqasha wa‑l‑taṭbīq al‑qānūnī)” is of special relevance.

Since medical expertise has established (thabuta) that the bodies of the victims Ibrahim and his son Muhammad and daughter Shamsa all lost their lives as an outcome of wounds from bullets;

and since the statements of the plaintiff ʿAkal, his mother, and witnesses X and Y, in their depositions, and the confession attributed to the defendant Hilal al‑Khalaf in the police report and his interview [by the investigating judge], all point to Hilal shooting at the victims;

and since what the defendant Hilal claimed in his police deposition and interview—that while the victim Muhammad was holding him, the plaintiff ʿAkal hit him on the head, and as a result fell on the ground, he then saw his son Anwar holding a rifle, which he took from him, then he fired three warning shots in the air, which pushed his victims to assault him, then he shot Ibrahim and his son Muhammad, while not knowing how Shamsa was shot—has not been confirmed with any evidence, but to the contrary all evidence shows that such statements are untrue;

and since his minor son Anwar denied having been present at the murder scene, and certified that when he came he saw the bodies of the three victims on the ground, which also has been confirmed by the victims’ relatives and the witnesses, and by the statements of witnesses X and Y in their depositions, which means that the defendant Hilal, as soon as he shot to death his three victims, attempted to kill ʿAkal, but was unable to do so for lack of ammunitions, so he dropped his rifle on the ground and ran away: he was therefore the only one shooting, and consequently, he was the one who shot Shamsa, contrary to his claims; in addition, the aforementioned two witnesses confirmed in their depositions that the defendant Hilal, as a result of a small dispute with the plaintiff ʿAkal, hurriedly rushed towards his room and stepped out with a rifle, and soon afterwards started shooting, which shows that the defendant Hilal was not in self‑defense, contrary to his claims;

and since the act of the defendant Hilal…constitutes a single crime under article 534, section 6 of the penal code…

the defendant Hilal al‑Khalaf is accused of murdering…based on article 534, section 6 of the penal code…[all bold and italics are added]

  • 38 Which stands for manslaughter in the Anglo‑American system.
  • 39 Mamdūḥ ʿUṭrī, Qānūn al‑ʿUqūbāt, Damascus: Muʾassasat al‑Nuri, 1993, 197–8.
  • 40 Which stands for first‑degree murder in the Anglo‑American system.

36I have deliberately italicized three sentences in the referral report which all of a sudden become the punctum of the whole case: 1. Hilal was the only one shooting, and no one else had firearms; 2. Hilal did not act in self‑defense; and 3. Hilal should be punished under article 534 of the penal code. By choosing article 534 rather than 533 the judge deliberately opted for a higher punishment, but he also averted the death penalty. In effect, while article 533 sentences the accused between 15 to 20 years with hard labor for an intentional killing (qatl qaṣd),38 article 534 extends the punishment to life imprisonment, for instance, if two or more persons were killed (section 6). Only if the accused committed a premeditated killing (qatl ʿamd) would capital punishment apply (article 535).39 (A ʿamd killing is also qaṣd, but of a higher level.)40 When the case‑file reached the referral judge it was composed of a multitude of police depositions, interviews, medical reports, and lawyers’ memos and the like: it still lacked, however, a clear focus, even though the police report that contained all preliminary depositions clearly made Hilal the prime and only suspect. Now the referral report stated what the three main issues were: but were the arguments well founded? And was there enough reliable evidence? If we look carefully at the judge’s concluding statements we realize that they were mostly based on the accounts of the two witnesses X and Y, which as we shall see later, were presumably kin related to the victims. More importantly, from the four specimens quoted above neither depositions nor interviews seem thorough enough to warrant any reliable witnessing.

37With the referral report behind, the case now stands at a higher level, that of the Jināyāt court. The true novelty here are the court hearings and their publicity: will they bring anything new? They should, in principle, but various limitations imposed on the structure of the hearings act as an impediment towards the flowing of information. To begin with, once the case reaches the Jināyāt—at times years after the crime was committed—the judges cannot, for all kinds of logistic reasons, devote themselves to one case at a time. In effect, in a typical three‑hour Jināyāt session, dozens of cases would have to be dealt with, most of them for a routine rescheduling of their hearings. The big problem for every Jināyāt court in Syria is to get witnesses on time for the hearings: either witnesses claim that they had not been informed on time, or else they have bribed the police officers who came to them with a convocation, so that they would avoid coming to court, or else witnesses are subpoenaed on time but fail to come to the hearings, and another convocation has to be issued. Consequently, the court handles dozens of cases in a single session, listening to a witness in one, rescheduling that of another witness for a second case, reading the sentencing for a third case, or listening to a counsel’s plea in a fourth one. Such a lack of concentration on a single case at a time places limits on the efficiency of the system: the chief judge seems at times overburdened and unable to distinguish the contents of one file from another, and needless to say, serious errors might ensue. Quite often the chief judge begins his examination of a witness with a “tell us what you know about the case,” as if apologizing beforehand for being lost in a mountain of files. Finally, as already noted for police depositions, the biggest drawback in the system of hearings is that they are not recorded verbatim: every once in a while the judge dictates his scribe a brief summary of the proceedings, so that the original utterances are lost forever.

38The hearings stretched for a year, from November 1996 to December 1997, producing in toto twenty pages of court summaries. By the time the referral report was drafted only one new issue came to the forefront, which has to do with the “sanity” of the accused (see below). Other than that, the referral report has relocated the case on a couple of issues: 1. To whom did “the wall” belong? Was its ownership common to all the inhabitants of the farm? 2. Did the accused Hilal clearly and unmistakably inform his victims that “the wall” was “his” own property? 3. How were the protagonists situated vis‑à‑vis “the wall” at the moment of the crime?

39Let us consider in some detail a session on December 1996 as an example of how court hearings would normally function.

The witness X was called, born 1937, identification card number…

The representative of the district attorney pointed out that the medical report confirmed that the accused was fully responsible of his acts at the date of the crime. I [the DA representative] accept what the report has stated.

He displayed the five‑member medical report, which he read.

I [the chief judge] wish we leave the matter of the medical report for the court [to examine].

  • 41 Note the abrupt change from third‑ to first‑person.

Witness X was called, born 1937, identification card number…, paternal cousin to the victim Ibrahim and the husband of his sister, and also cousin of the accused, with the same kin degree (nafs darajat al‑qarāba). After taking oath, and stating that he has no hostility (ʿadāwa) to anyone and is not kin biased (khālī al‑qarāba), he was questioned and said that he confirms what he had stated earlier on 2 April 1994. He did not hear the accused Hilal beckoning the victim Ibrahim not to graze his sheep in the wall zone of the village when they were drinking tea the night of the incident. That is my testimony.41

  • 42 The hearing sessions minutes usually do not fully quote the questions addressed by judges and lawye (...)

Replying to a question,42 he said: the wall of the village is for the entire village and ready for grazing.

Replying to a question addressed by the defense, he said: The wall of the village is not cultivated by anyone in particular, while there are east of the location where the three victims were killed plantations that belong to the accused Hilal, and the sheep of the victims grazing inside the village’s wall were outside the plantations of the accused Hilal.

  • 43 The implication here is that “the wall zone” is outside Hilal’s properties, contrary to what the de (...)

Responding to a question, he replied: The victims never had their sheep graze over Hilal’s properties.43

Replying to a question addressed by the defense, he said: When I heard the shots, and as soon as I came to the location of the shots, and saw the [dead] victims, the sheep of the victims had already strayed away and were located inside Hilal’s plantations.

  • 44 ʿAkal was a “suspect” for having allegedly used force against both the accused and his son.

Witness Y was called, born 1973, identification card number, … knows both the accused and the victims. The victim Ibrahim is the husband of his paternal aunt. After taking oath, he said: The day of the event I was asleep, the time was roughly 3:00 in the afternoon, because as a conscript I was on vacation, I heard several shots. I woke up and headed towards the location of the shots, and saw all three victims—Ibrahim, his son Muhammad, and daughter Shamsa—lying on the ground. The bodies were roughly 8 meters apart, close to the accused Hilal’s house. I realized that the accused Hilal had dropped his rifle on the ground, which was then picked up by the plaintiff ʿAkal, and I myself took it from ʿAkal. When Hilal did run away, ʿAkal attempted to stop him, but he could not. I also saw the suspect (ẓanīn)44 ʿAkal hitting the accused’s son Anwar on his head after his father, brother and sister were all killed.

Responding to a question from the court, he said: When I reached the location of the incident, the sheep of the victim Ibrahim were grazing inside the village wall, and then spread over the lands. I estimate them at 80 sheep. The victims’ sheep never grazed over Hilal’s plantations.

Responding to a question he said: The location of the three victims was roughly 7 meters from Hilal’s home, which in turn is 100 meters from the victims’ home.

Responding to a question from the defense, he said: The closest body to Hilal’s home was that of the victim Ibrahim, roughly 6 meters apart. That’s my testimony.

Witness Z was called. She’s 60 years old and was the wife of the victim Ibrahim, while Muhammad and Shamsa were her children. She knows the accused since he is one of her paternal cousins. After taking oath, she said: I reiterate what I had previously stated in my deposition dated 12 March 1994 in its totality. That is my testimony.

The other public witnesses were not present. New convocations were issued to them. The next hearing will take place on Sunday, 16 February 1997.

[The court moves to another case.]

40I have deliberately selected one of the longest hearing sessions, which occupies two full handwritten pages from the 20 that constituted the totality of the one‑year hearings. In effect, in many of the hearings, witnesses are called (the judge names them, then the court’s janitor shouts their names through a microphone) but often do not show up: the court reschedules the hearing and moves to another case. Moreover, as with Ibrahim’s wife above, she was subpoenaed to simply reiterate statements that she had uttered to an investigative judge two years earlier, while no one bothered to examine her from fresh.

41Which leaves the chief judge with the task of paraphrasing and summarizing the statements of witnesses. We have seen a similar policy with police depositions and the examinations conducted by the investigating judge. Needless to say, when the original utterances of witnesses are overlooked in favor of summaries dictated to a court scribe, the judge de facto acts as an interpreter of speech acts, hence the case is “constructed” more swiftly as it moves from one authority to the next. Notice in the above hearing that though the text is mostly kept within the third‑person singular, it moves at times to the first‑person mode in abrupt shifts, as if the chief judge chose to do so simply to give more credibility to the “I” whenever he felt so. The text also avoids even a minimal paraphrasing of the questions, as if only the answers matter. In sum, there is so much filtering in the transcripts of the court hearings that, in the aftermath of the referral report, the case begins to receive its final touches, leaving less and less room for the actors to maneuver.

Is he competent to stand trial?

  • 45 Since the lawyer’s heirs kindly authorized me access to the folder’s case in 2004 (the lawyer in qu (...)

42But what makes this case unique is neither the verdict nor the witnesses’ depositions. At some point the defendant Hilal started drafting short notes and memos to his lawyer, all of which written from his prison cell. As the handwriting and style keep shifting, and since all the documents included in the file were undated, it is impossible to determine how much of those notes were drafted by Hilal himself, or the kind of outside help (from inmates, family, and friends) he might have received. As we only come to know defendants from their official depositions to police and prosecution, Hilal’s “writing”—whether “his” own, or through outside help—does constitute a unique opportunity to look at his mindset. After all, not that many shepherds have memoirs or express their views in writing.45

43In what seems like his first attempt to communicate with his lawyer, an undated two‑page memo details the events that eventually led to the crime.

  • 46 Punctuation and emphasis not in the original Arabic.

Dear master and lawyer,46

  • 47 Italics added: the land—or the village wall—is already categorized as “privately” owned, hence excl (...)
  • 48 Notice how Hilal substitutes Shamsa, which to the very end he denied killing, with maternal cousin, (...)
  • 49 Anwar was a minor at the time.
  • 50 Notice how the narrator Hilal (or whoever wrote on his behalf) uses a third‑person indirect anonymo (...)
  • 51 Both the police and the Jināyāt final ruling mention that Ibrahim’s sister was shot to death, side‑ (...)
  • 52 Nuri’s identity and relation to the protagonists was not revealed.

From your client Hilal a summary of how the incident took place. The day of the incident I was alone on my land47 working and laboring. The land is roughly 100 meters away from my house. Four hooded shepherds came by with their sheep, and they have let them graze on my land. I have asked them to move their sheep out. They have refused and said that we have already warned you to leave this place a long time ago. I managed to identify them: Ibrahim Hasan Muhammad and his two sons and their maternal cousin.48 I told them that when I finish plowing and the season is over I will sell you whatever you need. They replied that we will not pay you a single piaster, and you will leave whether you like it or not. Ibrahim said to one of his sons: ‘You told me that once my brother Muhammad comes from Damascus we will slaughter Hilal because he is the son of a dog, and he owns all the village.’ Muhammad came to me and hit me with a stick. Then it was his brother’s turn to hit me with a hammer several times. Once I fell on the floor all of them started beating me. They pulled me all over the ground as I was severely bleeding. My wife came and started screaming. She attempted to save me. They began hitting her, she fell on the floor, they began pulling her around, and took some of her clothes off. They left us. We went to our home while our condition was difficult. I saw my son Anwar49 with a Russian rifle. I took it and put it at home. When they heard my wife saying ‘let’s go and complain to the police,’ they came back and Ibrahim was pulling the strings: ‘Slaughter him, and I will sell the sheep and tractor.’ We were only separated by a distance of 15 meters. I went back home, picked up my rifle and told them: ‘Stop for God’s sake!’ But they persevered. My wife attempted to mediate, but they hit her again, insulted her, pushed her to the floor, took off some of her clothes, boasting: ‘We will do it with her right in front of you!’ I received a hit on my head from the back, while someone was holding me from behind. I was left with no other alternative but to fire warning shots up in the air without being conscious (bidūn waʿī), since I could not run away. While they were attempting to take my rifle Ibrahim got shot and fell on the ground. When his son Muhammad rushed towards me the second shot was fired, and hit him directly.50 I have no knowledge how the girl got shot.51 I ran away with my wife and son Anwar towards the east in the direction of the police station at al‑Burid, and before we got there Nuri al‑Nawwaf52 was able to follow us, and with him was the rifle, which he managed to take [from my adversaries.] He said to me ‘do not take your wife with you to the police station, and do not say that she was with you, because they will arrest her.’ I have sent my wife to the al‑Burid village, and drove with my son in Nuri’s car to the police station. We gave ourselves up. The director and head of the police station showed up. I was in a pretty bad shape, having received so many blows on my head and body. They brought a doctor who examined me and gave me some medicine. After a while I heard my son Anwar screaming. They were beating him and he was screaming for help. I could not hear him anymore. A judge came and took my deposition. I was not fully conscious. I told him about the fight, but did not mention my wife, being afraid that they would arrest her. After the investigation was over, they took me to Idlib’s prison.

  • 53 Literally, the witnesses of public right, or those that were summoned by the prosecution.
  • 54 All of which were from the victims’ and plaintiffs’ family.
  • 55 The Syrian penal code, which was enacted in 1949 during the brief dictatorship of Ḥusnī al‑Zaʿīm, a (...)
  • 56 Hilal uses homes in plural throughout his correspondence, but it remains unclear what he owned besi (...)

We now come to the public witnesses (shuhūd al‑ḥaqq al‑ʿāmm).53 Muhammad Shaykh Muhammad, his son Walid, ʿUmar Shaykh Muhammad and his son ʿAziz,54 who was present during the incident, and who was previously involved in an earlier fight. The witnessing of all those is unacceptable from both the point of view of the sharʿ and law (qānūn),55 because there is between us previous litigations (khuṣūma) and blood [was shed], considering that my father had killed their father, and the wife of the victim Ibrahim happens to be their sister. Those are witnesses that are attempting to corner me while in prison, in order to benefit from the land and homes,56 and they have got what they wanted. …

44Whether the above letter was the first in the series or not is hard to determine. Its significance comes from the fact that it is the most complete when it comes to describing the incident itself, its aftermath and possible causes. More importantly, it sheds some light as to links with previous episodes regarding alleged feuds and bloodshed between the two families. Let us note for the moment the following observations:

  1. The shooting of the three victims remains the most obscure part of the narrative. Hilal alleged that his opponents were beating him, and, when he started shooting, one of them was holding him from the back which is awkward and hard to believe. The shootings were described in the most detached style possible, as if the bullets went out on their own, without anyone being specifically responsible.
  2. The missive brings two elements that were precluded from the Jināyāt’s final ruling: the alleged longstanding feud between the two families; and the interest that the other party might have nurtured towards the defendant’s properties. Even though economic relations may have been at the core of the conflict, the Jināyāt would not handle them.
  3. Perhaps the most important element was regarding the status of witnesses. While the defendant clearly identified the witnesses’ alleged kin affiliations and motivations, the Jināyāt failed to do so. Which raises an interesting question: considering that in such worlds, plaintiffs, defendants, and their witnesses, are in all likelihood kin related, what is the value of their testimonies, and should special procedures be devised to take into consideration kin interests? In another undated letter to his lawyer, the defendant Hilal claimed that even the certified doctor who examined the three bodies was “from the kin and tribe of the victims.” “I even suspect,” Hilal went on alleging in that same letter, “that the locations of the bodies had been altered either by the police or the doctor.”

45We will have to keep in mind all three points when going through the other memos drafted by Hilal to his defense lawyer. An issue that has constantly emerged in later letters is the possibility of peaceful settlement.

  • 57 The third son and only survivor of Ibrahim al‑Muhammad who was also present at the crime scene when (...)
  • 58 Hilal tends to mention his homes in plural, even though the official documents refer to a single ho (...)
  • 59 Unclear what is meant by this expression. It could be public lands with no specific owner.

Within a month of my arrest, ʿAkal al‑Muhammad57 went and met with Nuri al‑Nawwaf, and asked him to intervene in the peaceful settlement (ṣulḥ) to solve the matter. Nuri al‑Nawwaf had forwarded a proposal to me which would solve the matter for SP600,000 ($12,000). I replied by giving him authority to sell one of my lands and pay the requested sum. But ʿUmar Shaykh Muhammad and Muhammad Shaykh Muhammad had objected to the proposal and threatened ʿAkal for attempting a peaceful settlement. They have made an agreement with one another to usurp (ightiṣāb) my homes and land,58 and appointed themselves as public witnesses in the case. They have thrown my family out of their homes and land to a free zone (manṭaqa muḥarrara).59 My brothers had met God’s will and their children have now joined my family, which has grown to 33 souls (nafas), all of which homeless and with no place to stay. Our land has been robbed from us by ʿAkal al‑Muhammad and his maternal uncles ʿUmar al‑Shaykh and Muhammad al‑Shaykh. My generous master if you can bail me out (ikhlāʾ sabīl) I will take it upon myself (ataʿahhad ʿala nafsi) that within a month there will be a peaceful settlement and I will bring together my homeless family.

46In what looks like one of his last—and shortest—statements, Hilal makes a final plea to his defense counsel.

Dear master, God be on your side,

I ask you to delay the verdict, hoping that a peaceful settlement would come, because I am working on one more than ever before. I urge you to prolong the verdict for some time.

And if you can bail me out for a cash guarantee I am sure that I will be able to reach a peaceful settlement within a month, if God wishes, and I am ready for the court hearings, the ruling, and other matters.

The inmate Hilal.

47Since the note, like all others, was left undated, it is impossible to know how close it was to the verdict. In the sentencing, six years after the crime, the court, in addition to the 20 years with hard labor, summoned the defendant to compensate, in lieu of the blood money (diya), the heirs of Ibrahim and his sister each victim for SP600,000 ($12,000), to be allocated according to sharīʿa law, thus while the plaintiff ʿAkal Ibrahim al‑Muhammad (the only survivor) would obtain SP50,000 ($1,000), the heirs of the victim Muhammad (Ibrahim’s son) would receive for their part SP800,000 ($16,000). The punishment was indeed severe, and was definitely far above what Hilal himself had hoped for a settlement (SP600,000 in toto). Moreover, when it comes to cash settlements the court’s language surprisingly borrows from tribal customs: compensations are looked upon as blood money. If, as Hilal’s letters to his attorney testify, he was hoping, through a friend’s mediation, to work out all by himself a resolution, then such mediations must have surely failed, leaving the Jināyāt to proceeded with its own harsh settlement. Because the Jināyāt generally compensates far less than the expectations of the plaintiffs, the disputants tend to settle on their own prior to dropping their personal rights over the case, leaving the Jināyāt with the public part of the verdict only. In rural and tribal areas, since blood money settlements are the norm, when the courts make their own assessments, not only do their verdicts tend to overlap with local norms, but compensations have to meet expectations; otherwise, the cycle of violence might be once more revisited. By contrast, in urban areas like Aleppo, particularly among the middle and bourgeois classes where blood money settlements are not normative, compensations are assessed on the expectations from past courts’ rulings, which on average tend to be low: the plaintiffs would then assess whether to go for a private settlement and “get more,” or proceed with the case.

48Our démarche assumes that the use of rules by actors is as crucial as the understanding of the rules of law. Rather than simply focus on the rules of law, their inner logic, and coherence (or lack thereof), we have deliberately shifted our analysis at how social actors understand and make use of the legal rules in combination with their customary practices. The behavior of actors is detected mainly, though not exclusively, through their speech acts and utterances. What could be detected in the language of users (plaintiffs, defendants, witnesses, police and investigators, judges and lawyers, and even doctors and psychiatrists whose language is assumed to be “scientific”) is an ability to contextualize action according to one’s needs and strategies. They do so while they have to keep an eye on the rules, and, at the same time act in conformity with their own social and economic interests. In effect, it is through practice—the use of rules by actors—that the link between law and the economy reveals itself. Through language the social actors index and document a conflict or crime: in other words, they provide their own representations of the case, hoping in the meantime that their actions would tilt the case in their favor. But, in so doing, they are projecting for symbolic and material compensations, hence they are looking at their economic status once it is over and they are back to normal life. Our case reveals some of the economic interests of all protagonists. What the defendant Hilal was attempting in his missives and notes was a representation of the crime in his own language.

49Consider the following undated memo in which Hilal tossed what he viewed as “evidence”:

  • 60 Punctuation added in the translation below.

50“My master, below is some evidence (adilla) with witnesses to support them.”60

Hilal’s statements (numbering is his own) Observations
A. 1. The immediate deposition (dabṭ fawrī) [at the police station] has been organized according to the opponent’s will—bribed (marshuwwa)—and one of those who drafted the deposition—policeman Jamil al‑ʿAbid—would confirm this. Hilal immediately delegitimizes his deposition at the police station on the ground that his opponents bribed the officers and imposed their will. In principle, as the Damascus Naqḍ has constantly stressed, such depositions have no value unless suspects reiterate their statements at trial. But in practice such depositions have a value beyond proportion as the courts heavily rely on them even if suspects subsequently deny every word they said.
2. When the deposition was being recorded, I was not fully conscious at all. The police fetched a doctor who gave me medicaments, but my statements were nevertheless recorded, without having gained my consciousness. The deposition is further delegitimized with the allegation that he was not fully aware of what he was saying. This “lack of consciousness” came earlier in one of the letters to his council, but for another event: that he was shooting up in the air, without, however, full consciousness of what he was doing. Even though a simple denial in the presence of an investigating judge would have made it—at least in principle—what Hilal was attempting here was to posit his opponents as having “something to hide.” Hilal killed three persons in a row, and he was expecting a punishment that could be life threatening. He was therefore left with two options: (i) a peaceful settlement based on blood money compensation; and (ii) to throw doubts at his opponents with the hope that the court would alleviate the punishment.
3. I have tried a lot to have my statements heard by an investigating judge, as I placed several demands, to no avail, and the only statements I delivered were to an assistant judge. The file I had access to confirms this. The only statements that were recorded, after the deposition to the police the night of the murder, were to an assistant judge in Idlib the day after the crime. Suspects tend to seize the opportunity of their encounter with an investigating judge to deny in toto what they had stated earlier to the police. It remains unclear why Hilal was denied access to a judge, an issue that the Jināyāt did not even raise in its verdict.
B. The public witnesses in the case are in toto my adversaries (s. khaṣm) because my father killed their father, but in spite of that, the source of instigation and trouble (fitna) are the witnesses and their sister, the wife of the victim [Ibrahim], and there is lots of witnessing (shawāhid) on their assaults, etc. Hilal was attempting to contextualize the crime in light of a previous killing, or chain‑retaliations. But there is also an indirect contextualization regarding the motivations of his three victims and their witnesses—that all of them acted or were acting in retaliation for the killing of their father. (Note that Hilal did not care to explain why his father killed their father: was it also over a land dispute?) The witnesses are suspicious because they’re kin related to the victims and like the victims are retaliating for a previous killing. Now the whole episode looks more “understandable”: victims and witnesses are tied together in a single act—retaliation. Note that the Jināyāt excluded all this material in its ruling. As contextualization is the main strategy deployed by the actors attempting to provide explanations for their actions, the principle of exclusions and inclusions is what governs the policy of the Jināyāt (and all other judicial instances). Whenever the Jināyāt excludes contextualization attempts by either party, it is de facto re‑contextualizing the disjunctive elements in the case through its own judicial language.
C. The land of the victim and the witnesses is 2–3 km far from mine, and despite that their sheep only graze over my cultivations with a pretext—the village wall—and it is known that the wall is no good for the sheep to graze, and the intention (ghāya) of the victim and witnesses is to force me out of the farm, from my home and land. The process of contextualization proceeds even further than in B, as victim and witnesses are lumped together under a single conspiracy theory. But the status of the disputed land is left unexplained here, and it is in another letter (which could have been drafted earlier or later) that Hilal explains how property ownership has shifted since the 1960s: “The [disputed] land was [classified] an agricultural land since 1963, dispensed by the agrarian reform program to the peasants who benefited from it: [five persons are listed including a woman]. I purchased the portions of X and Y since 1981, and constructed my home on the upper portion of the land, then gave another portion to the state to construct a primary school, which is still there.”The defendant was constructing a systematic narrative, explaining the case from his own point‑of‑view, but which the Jināyāt did not care to consider.
D. The rifle had been deposited with me, and when I went to the police station [right after the killings], relatives (aqārib) of the rifle’s owner came to me and requested that I say that the rifle is mine. The ownership of the rifle is not important per se, considering that Hilal confessed his crime and there was plenty of evidence that he did it. Ownership of guns, however, is authorized only with a permit, and not having one is a felony. The genuine owner might therefore have had to hastily dispatch his relatives to deny ownership, either because he had no permit himself, or else he did not want to get involved. More importantly, considering that in this tightly controlled society of honor and violence, guns are the most common weapon of crime, and their circulation from one individual to another, from home to home, is in itself a means for consolidating relations and establishing bonds, ownership—like crime—cease to be a private matter: guns “protect” groups as much as they “protect” individuals.In his examination by an assistant judge the day after the murder, Hilal stated that that he purchased the rifle in Lebanon 15 years ago: “I used to go and work there, I purchased the rifle, and brought it with me [to Syria.] Everyone at that time had guns, and I’ve got sheep that I take with me to the eastern region.”
[The rest of the paragraphs were left unnumbered.] After the incident I went with my wife and son Anwar in the direction of al‑Burid, and on the road I passed by the village of Jibb Abyad at the house of X. They told us not to mention the name of the woman [my wife] so that she does not get imprisoned and arrested from justice. As with the rifle, the decision not to mention his wife’s presence at the murder scene was not his own, but a collective one. Hilal was attempting to shift responsibility from the individual to the collective.
[In the remaining three paragraphs the handwriting changes and the language considerably deteriorates from plain to colloquial Arabic, indicating a likely change in authorship.] All the inhabitants of my village have seen everything before anyone else, and they have seen the distance of the bodies from the door of the house. Same strategy as before: even the seeing was collective—by all the village inhabitants. Notice that the prosecution and Jināyāt went in the opposite direction: to individualize witnesses—those same ones that Hilal attempted in vain to discredit on the basis of their kin relations to the victims.
The legal doctor who examined the bodies is from the same tribe (ʿashīra), and he might have heard the talk of those present after we had run away. After having discredited all witnesses, now it is the doctor’s turn. The process of contextualization goes even further with the attempt to indicate that in a milieu where everyone is kin related, and crimes are not individual acts, then how is objective truth possible?
The witnesses are opponents (akhṣām) and the instigators. After the incident one of the witnesses Walid al‑Shaykh attempted to kill my son Khalid in Latakia, while others have assaulted my brother in his village and beaten him up, and they are the ones who have damaged homes and burned their doors to the ground. The crime supersedes those involved in it, as it soon progresses to engulf other family members from both parties.

51The witnesses’ alleged kin bias was picked up by the defense counsel in one of his memos to the Jināyāt on August 1995: “Your honorable court, being a court of substance (maḥkamat mawḍūʿ), will notice that it is not permitted to judge by the law and deduce evidence through bypassing the witnessing of neutral persons (ashkhāṣ ḥiyādiyyūn), while taking into consideration only the statements of the plaintiff and his relatives.” The counsel refrained, however, from contextualizing the case within the broader perspective of the defendant—that of the ongoing feuds between the two families, beginning with his father’s alleged assault and the killing of Ibrahim’s father. The counsel nevertheless kept nailing down the case to its main components: the disputed land, and the victims’ constant trespassing over Hilal’s property, the witnesses’ kin problem and their contradictory statements, and the state of mind of a defendant who had been with his wife insulted, beaten up, and humiliated by all three victims. The counsel went, however, at great length, while quoting rules, procedures, and interpretations from scholars in Syrian, Lebanese, and Egyptian laws, explaining that the court ought to draw a distinction between someone “who has become vulnerable (taʿarruḍ)” under a certain condition, and the assault (iʿtidāʾ) itself: “A rightful defense does not set as a precondition the occurrence of an assault, since it is enough that an unjustified confrontation over the soul (nafs) had taken place, as elicited in article 183 of the Penal Code.” And he then added with confidence: “We have to understand the meaning of taʿarruḍ in its right context, since it implies the danger from an assault and not the assault itself, because the act of defense orients itself towards that danger so that it does not occur.”

Was he insane?

52Social actors index their speech in such a way that each utterance ought to be “understood” by the hearer within its proper situated encounter. That is at least how in principle a verbal exchange between speaker and hearer ought to proceed. It is, of course, quite common for speaker and hearer not to “understand” one another—or at least the hearer might understand the speaker only literally, while the symbolic social meanings are lost. More importantly, even routine utterances assume and generate a system of meanings that is made and unmade while people speak and act. For the researcher, such assumptions and generations of meaning are what social actors typically take‑for‑granted, upon which research relies to explicate the acting of individuals in situated encounters. From the vantage viewpoint of the social scientist, the assumptions in the way people talk and act prove to be the most important vehicle for social action. In effect, in any situated encounter, between what is “accepted” and not “accepted” as a form of speech, lie deeply seated and taken‑for‑granted relations of power. When, for instance, a suspect is being interrogated by a prosecutor, every question assumes broader status, class, gender, ethnic, and linguistic hierarchies in society which are not necessarily revealed to either speaker or hearer. More specifically, the prosecutor in this particular instance is in a power relation with the suspect, and uses a mixture of professionally oriented juridical language and a common profane language, while the suspect is limited to the latter. During such a linguistic exchange, not only a suspect might metamorphose into an accused for having uttered some “revealing” things to the prosecutor, but more importantly, what stands out as “revealing” from what is not, or as “enough evidence” versus what has been disregarded by the prosecutor as “invalid,” is a question of interpretation, which for the most part relies on the taken‑for‑granted undertones of the exchange. Moreover, since in the Syrian court system cross‑examination transcripts—whether conducted by the police, prosecution, and courts—do not carry the original verbatim utterances, but either summaries or transcripts in official Arabic, what “we”—as outside observers—have access to is a primary rough interpretation of the original unrecorded linguistic exchange.

53To illustrate my point more concretely, I would like to address the issue of the “insanity” of the accused, which his defense council brought to the attention of the court since his first plea to the Jināyāt in 1995. An issue like “insanity” immediately brings suspicions to both the professional jurist and the profane: What is insanity? How can we determine that a person is insane? And are only doctors eligible to determine who is insane from who is not—a diagnosis that should then be approved or refuted by a court of law? To the uninitiated, the issue of insanity, or genetic or mental disorder, ought to have a special status, simply because it may add another layer of uncertainty to the case, or else because it might become a playground for social actors to push the direction of a case in their benefit. For the researcher, however, since the issue of insanity is linguistically debated among doctors, lawyers, and judges, it is no different from the mundane cross‑examinations and other statements—with all their taken‑for‑granted assumptions and innuendos—which populate any case.

54Consider for example the following exchange between an assistant judge and the suspect Hilal at the Idlib prison just a day after the crime.

Q1: Did you shoot [Ibrahim’s daughter] Shamsa?

A1: I swear to God the almighty that I did not shoot her, nor do I know who shot her.

Q2: X and Y claimed that they saw you shooting at the victims, then drop the rifle on the ground and run away. So how come do you deny shooting on Shamsa? And if you did not shoot her, then who did it?

A2: What the aforementioned witnesses said is incorrect, and I completely deny shooting her. When I did run away she was standing with the women.

Q3: We have seen the bodies of the [three] victims at the place of the incident located from one another by approximately 10 meters forming a triangle, which confirms the falseness of your statements regarding the shooting of only the victims Ibrahim and Muhammad in one place, so what do you say?

A3: When I shot Muhammad he went east and fell close to his father [Ibrahim] who had fallen before him, and I confirm that I did not shoot Shamsa.

55For a while the whole case had been hinging on Shamsa: Who shot her to death? Hilal denied from the very beginning that he did so, while those present on the scene confirmed that he was the one who shot her. The implicit assumption in the whole Shamsa episode is that as a woman she was a defenseless creature who would do harm to no one—certainly not to the likes of Hilal. Her killing would therefore rebuke the defense thesis that Hilal acted in self‑defense, or as his lawyer pointed out, because of the taʿarruḍ that he was subject to from the others: savagely beaten up and humiliated with his wife, he was left with no other choice. What is revealing in the above interview is Hilal’s depiction of Shamsa as he ran away: “When I did run away she was standing with the women.” Whether his description was factually correct or not is beyond our means, but suffice to say that it does conform to a common social understanding of the role of women in rural societies: they stand together and watch the violence perpetrated by “their” men, and assaulting them would be dishonorable. Hence Hilal’s denial to the very end. While the examiner attempted in vain to corner him, the examination would not have carried the same weight had it not been over a woman’s body.

My client is known to be an idiot

56In a similar vein, the issue of Hilal’s “insanity,” first initiated by his lawyer, carries similar taken‑for‑granted assumptions. In his first memo addressed to the Jināyāt, the defense counsel noted that “my client is known to be an idiot (ahbal), and this was confirmed in the attached memo from the department of conscription (tajnīd), when he was summoned to serve his compulsory military service, but was soon released (uʿfiya) because of his idiocy (habal).” The memo attached to the counsel’s address emanated from the Syrian army headquarters, and pointed out that Hilal served in the army for one month only, in April and May 1965, prior to his permanent release. The doctor’s report, which did not exceed five lines, described Hilal as someone who “has a brain deficiency (naqṣ ʿaqlī) to the point of idiocy (bi‑darajat al‑balāha) and should therefore be permanently released from military service.” The medical report, which was approved and signed by the chief doctor and three officers, did not even bother to explain how such a conclusion was reached.

57In light of Hilal’s previous problems at the military, his attorney demanded the Jināyāt that his client be subjected to a medical examination, a request that received the Jināyāt’s approval. In light of the medical examination conducted in Aleppo, which regrettably was not included in the file I consulted in 2004, the defense rebuffed the medical committee’s claim that his client’s “actions were sound (taṣarrufāt salīma)”: the medical committee reached its conclusion after realizing that

  • 61 The expression originally occurred in the 1965 military medical report, quoted above.
  • 62 Medical committees are always set in odd numbers. Since the first committee had three members, the (...)

the accused was not positive, since he did not respond to the questions posed to him…We have been informed by the accused’s relatives that the latter, prior to his move to Aleppo for medical consultation, had been advised by some inmates in his cell to keep silent in fear of the committee’s members. The accused rejects the committee’s competence on the basis that it is not possible to detect the mental capacities (al‑mulkiyyāt al‑ʿaqliyya) for any person in an hour or in a question. The accused suffers in effect from a brain deficiency (naqṣ ʿaqlī) to the point of idiocy (li‑darajat al‑balāha),61 and if someone is an idiot (ablah) it doesn’t mean that he would be unable to utter a single true or sound word, which prods us to place him under observation and consultation by a medical committee, and in light of that [the latter] would give its opinion regarding the safety of his mental capabilities (salāmat mālikatuhu al‑ʿaqliyya), then check whether he does or not suffer from any mental or psychological illness (maraḍ ʿaqlī aw‑nafsī). For that reason we demand that the accused be placed under the supervision of a five‑member medical committee,62 comprised of specialized doctors ready to take hold of their responsibilities, which would place him in a state‑owned hospital for psychic illnesses (amrāḍ nafsiyya) for an acceptable period of time, and then in light of that draft a report.

58The counsel’s plea for a second medical examination did not seem to have had much of an effect on the defendant’s status, and the whole issue of the defendant’s “mental deficiency” only came to light once more in the Jināyāt’s ruling in 2000:

The defense has pleaded that his client is not responsible for his actions since he has a mental illness (maraḍ ʿaqlī), based on the fact that the accused Hilal was dismissed from his compulsory military service [in 1965] for his idiocy (balāhat‑ihi). That was confirmed in the attached military medical report, but the [defense] plea is rejected because the medical reports of the three‑ and five‑member committees have both confirmed that the accused Hilal does not suffer from any mental illness (maraḍ ʿaqlī), making him responsible of his actions from the day of the crime until now. His mental powers are normal.

59The court, which described the dispute as “simple (basīṭ),” rebuffed the defense’s other claim, namely, that Hilal acted in self‑defense, arguing that the victims did not carry any weapons, hence posed no immediate threat on Hilal’s life and family.

Writing insanity

60“The accused rejects the committee’s competence,” wrote the defense in light of the three‑member medical committee findings, which found Hilal’s behavior “normal.” The defense’s statement would have indeed seemed strange, were it not for its legal fiction: “On behalf of my client, I am requesting that the committee’s findings be revised,” was what the counsel had in mind. Otherwise, the defendant, on his own behalf, would be objecting to the fact that his medical examiners did find him “normal” and doing rather well. But the twist of irony in such statements only highlights the real issues: Who determines that a person is insane? And how would insanity be diagnosed and described? Since in the modern world “insanity” and “madness,” like the rest of “psychic disturbances,” are looked upon as medical phenomena, there is little awareness, however, among medical teams, doctors, judges and lawyers, and various other authorities of professionals and laymen, that describing and diagnosing such behavioral phenomena is primarily a linguistic practice whose formulations are determined by a multitude of causally linked social, economic, political, and juridical phenomena, all of which, in sum, are historically determined. That is clearly visible in Hilal’s case, and in the confusion of the various authorities—the medical and legal—over the proper description of Hilal’s “mental problem.” In 1965 the military medical committee diagnosed Hilal as suffering from “a brain deficiency to the point of idiocy.” Then three decades later, in light of Hilal’s triadic crime, his defense lawyer, which took the committee’s findings for granted, described him as an “idiot,” using a set of expressions in Arabic—habal, ablah, ahbal, balāha—all of which hinge on the fact that Hilal might have been “simple minded,” suggesting in all likelihood that there was no awareness from his part of the gravity of the crime that he committed. Finally, the Jināyāt court adhered by the three‑ and five‑member medical committees, both of which found that Hilal did not suffer from any “mental illness.”

61What characterizes such common‑sense descriptions, besides their use of a set of confusing terms that poorly describe Hilal’s condition, is that there is nothing in them that is either medical or legal per se. Harold Garfinkel argued that “A common‑sense description is defined by the feature ‘known in common with any bona fide member of the collectivity’ which is attached to all the propositions which compose it.” Basing himself on Alfred Schütz’s phenomenological feature of what is “known in common,” Garfinkel concludes that

  • 63 Harold Garfinkel, “Common‑Sense Knowledge of Social Structures,” in C. Gordon and K. Gergen, eds., (...)

These constitutive features are ‘seen but unnoticed.’ If the researcher questions the member about them, the member is able to tell the researcher about them only by transforming the descriptions known from the perspective and in the manner of his practical ongoing treatment of them into an object of theoretical reflection. Otherwise the member ‘tells the researcher about them by the conditions under which severe’ incongruity can be induced.63

62Regarding Hilal’s so‑called “mental illness,” both medical and legal authorities (doctors, lawyers, and judges) shared in their memos similar common‑sense descriptions drawn from what is “known in common.” What was here “seen but unnoticed” were Hilal’s “bizarre manners” which were classified by some medical sources as an outcome of a “mental illness.” But what remained unnoticed, however, were the conditions that make such linguistic formulations possible: the 1965 medical report, for instance, was so short and concise that all it did was place a tag on Hilal’s “mental illness,” as if embarrassed to admit that the symptoms of the “illness” were so “visible” and “common knowledge” that no expertise was needed.

  • 64 Peter L. Berger and Thomas Luckmann, The Social Construction of Reality, The Penguin Press, 1967.

63Bona fide common‑sense descriptions are embedded within the common stock of linguistic knowledge in a given society, and without that “known in common” routine daily interactions, whether institutionalized or not, would not be possible, and society as we know it would cease to exist. For the researcher, the problematic character of “common knowledge,” as expressed in language, gestures and images, stems from the fact that a great deal of decision making, judging, labeling, sentencing, policy making, economic, and social well being unconsciously relies on such taken‑for‑granted common stock. A severe incongruity can be induced whenever the social actors are unable to understand the meaning of their actions and the causal links that bind together various disparate spheres—economic, juridical, political, and social—of the lifeworld. In the various linguistic situations that we have examined for this case—lawyers’ memos, investigations, cross‑examinations, medical reports, verdicts, and, above all, Hilal’s own writings—the common knowledge, which enabled speaker and hearer to agree or disagree with one another, prepare their strategies, and reach conclusions for the sake of the final verdict, all bear the imprints of the taken‑for‑granted “social construction of reality.”64

64Which brings us to the core issue of the autonomy of a legal system. Should we expect the judiciary to shy away from the common‑sense descriptions while forging its own conceptual language—that is, assume a degree of autonomy at all levels: the theoretical, practical, and moral? In other words, is it possible to imagine a Syrian judiciary that would be more autonomous in the sense of deploying more rigorous practices for fact finding, the handling of witnesses’ testimonies, the medical evaluation of suspects, and the drafting of rulings? We have seen that the practice of witnessing constitutes the core of every system of justice, consequently, how witnessing is handled reveals a lot about both the judiciary and society. In effect, the institution of witnessing primarily establishes a fiduciary relationship, which is solely based on contractual trust. Thus the way actors account for an event, and how the various official authorities record their statements and pass them along, establishes a trust relationship between the disputants, on the one, and the judiciary, on the other. Since in accounting for what happened the actors use common language, what is said and how things are said, and what is recorded and how it is recorded, all constitute various levels of linguistic practices, which, unless taken in their totality, would not make any sense on their own and for their own sake. Let us assume that a system of justice attempts to bring more autonomy to itself by, for instance, creating more vigorous procedures while investigating the crime scene, which would make it harder to tamper with evidence on the ground. But unless actors understand and trust such newly implemented procedures, they would not have much of an effect on investigations. We have indeed argued all along that improving the institution of witnessing would not solely rest upon procedural matters, since what is a stake here are core normative values: what is said or unsaid, and how it is uttered, and how it is recorded or censored.

  • 65 Ronald Dworkin, Law’s Empire, Belknap Press, 1988.

65Legal theory generally looks at the rules of law as the most important component of any system of justice. Not only do the rules constitute the inner substance of the system, but more importantly, they are the “theory” out of which other elements (e.g. procedures and fact finding) are constructed. Judges are therefore supposed to “apply” the rules of law, meaning that they have to “find” the adequate rule for each case, and whenever no such rule is available ready at hand (or no clear precedents are available)—for instance, in what Ronald Dworkin labels as “hard” cases65—judges may “interpret” the rules accordingly, in order to extract, through analogy and judicial reasoning, the corresponding rule. Consequently, if much attention has been devoted to the rules, their interpretation, and procedures, it is because they presumably constitute the core of a system of justice; and if the legal cases tend to receive so little attention, it is because they are perceived as an “application” to the rules of law.

66Our approach does not intend to reverse the dubious equation between “theory” and “practice,” for the simple reason that we do not believe that a system of justice functions through falsely constructed academic categories of this kind. To understand the fabric of law we have proposed to follow the construction of a single case—any case—from beginning to end. The rules of law, like the rules of a chess game, are a set of entirely man‑made ideas that do not necessarily describe anything in the real, material world. When we claim that a system of justice is a construction, the implication is that it is solely composed of man‑made rules rather than, say, of natural, divine or magic elements (what is often referred to as “natural” or “sacred” law). Thus, even if the actors claim that they are part of a system of justice that is sacred and religious, we approach the system as it is constructed through the actions of those actors. The rules are by their very nature general and abstract, while a case is concrete and theoretical, in the sense of deploying a method in inquiry through its construction of the case in question as a legal artifact. Consequently, we are only interested in how the rules of law are used by the social actors, and how such a practicing of the law gives the rules their shape and meaning. In sum, the rules of law become concrete and real in the proceedings of a legal case.

67As in any criminal case, the crime that we have concentrated upon begs the question, What happened? When social actors compete for various versions of the same event, they alternate between straightforward accounts, structured narratives, and possibly discourses. There is no clear cut difference, however, between an account that could be proven, hence in principle would determine what actually happened, and one that is accepted as true. The reason is that when actors are accounting for what they saw and heard, they are doing so because they have been summoned by an official authority, which in turn will repackage their statements in a particular way. At each step of the judicial process, what stands as “raw information,” which we will assume are the original statements uttered by the actors themselves, are immediately filtered, then transcribed in official Arabic for the sake of receiving their final form as officially approved or disapproved accounts or narratives. Consequently, a witness account, which, say, was originally uttered in a police station in the aftermath of the crime, acts in the deposition form like a segment of information among other segments, all of which forming the stuff from which subsequent reports are constructed. How do then such segments of information get verified? Is there a reality principle, which behaves like a laboratory, and which tests the truthfulness of statements? If a system of truth is constructed it does not mean that anything goes. Each system of truth is constructed in a particular way, and it is how it is constructed that determines the robustness of its claims.

The accused is now in a borderline state

68Questioning whether the accused is sui juris amounts to recovering his ahliyya: is he competent to stand trial and assume his legal responsibility? Or is he ʿadīm al‑ahliyya, hence legally incompetent? As incompetence amounts in most instances to seeking medical expertise, usually at the request of the defense, the courts soon find themselves embroiled in a medical discourse and in the dubious task of translating a medical vocabulary into a legal one. Upon closer examination, however, the medical expertise itself becomes contentious, as the (in)competence of various committees is subject to debate. Let us illustrate a case where medical expertise was initially more than welcome.

  • 66 The case was reported and discussed by Muhammad Fahr Shuqfeh, “Naqṣ ahliyyat al‑qātil fi jarīmat al (...)

69[C3–2] On August 1979 an old man who was praying in a small mosque in Ḥamā was stabbed with a knife by an assailant who allegedly came from the outside and who left the knife and ran away after assailing his victim. The assailant managed to hide in an x‑ray room of a nearby hospital, having been followed by a small group of people who were able to track him. He allegedly threatened to blow the place with gas, but some managed to enter the room and got hold of him. The victim was transferred by helicopter to a hospital in Damascus, but died soon afterwards. When people in Ḥamā knew of his death, they mobbed and burned the assailant’s family home, which was close to the murder scene.66

70On October 1979 the referral judge in Ḥamā drafted his report, which in the Syrian penal tradition constitutes the first preliminary synthesis for the case prior to its transfer to the criminal court. The judge recommended not only to punish the assailant pursuant to article 535 of the penal code, but also accused his father of instigation (taḥrīḍ) for premeditated murder (ʿamd) pursuant to article 216 of the code. In fear of assailments against the accused and his family, his lawyer demanded that the court hearings take place outside Ḥamā, and they were effectively transferred to the first criminal court in Damascus. It was during the Damascus court hearings that the defense demanded that its client be transferred to a hospital for medical evaluation on the basis that he was caught with “madness” (muṣāb bi‑l‑junūn), which the court agreed upon. Over a one‑year period in 1980 and 1981 a number of doctors visited the accused in his hospital room, and amid conducting a battery of tests, drafted a report to the court, signed by the hospital’s director, which claimed that “the perpetrator is suffering from schizophrenia (fiṣām), thus is not responsible (ghayr masʾūl) for his actions, constituting a danger to himself and public safety (al‑salāma al‑ʿāmma).”

71On the victim’s side, the council representing the “plaintiff’s personal legal right” (wakīl jihat al‑iddiʿāʾ al‑shakhṣī), which stands in parallel to the public authority of the Prosecution Office (DA), complained that the diagnosis was not conducted under the court’s supervision, which prompted the court to appoint a three‑member committee to re‑diagnose the defendant. The medical committee issued its report in November 1981.

  • 67 Medical Report 1.
  • 68 Emphasis in bold and italics is mine.

[MR1]67 Upon diagnosing the accused, and after reading the medical reports and the judicial dossier, it turned out that from his general attire68 (maẓhar‑ahu al‑ʿāmm) he was under the effect of major calming drugs. He thus suffered from a trembling in all four parts [of his body] as an effect of the medications. It was also noticed, upon his interview, that he talked to himself, without concentration, no reaction whatsoever, indifferent to the world around him. Among the symptoms that attracted our attention: total negativity, indifference, absence of reaction, even though he admitted the crime attributed to him. He denied that he was afflicted with madness (junūn), and when pursued about his illness, he retorted: it’s a mere question of nerves (aʿṣāb). Pursuant to what was stated, apropos the total negativity, indifference, and lack of reaction in the patient, we have unanimously decided that he is afflicted with schizophrenia (infiṣām), that his affliction is old enough, dating prior to 1979, and that he committed his crime under the effect of the sharp seizures that regularly hit him. For those reasons he cannot be held responsible for his actions; he therefore constitutes a danger to public safety, and needs to be treated in a mental institution. That is our expertise.

72In December 1981 the plaintiff’s counsel, acting on its own behalf, that is independently of the Public Prosecution Office (DA), reprimanded the medical report, demanding its revision by a five‑member committee:

  1. The accused should not be diagnosed when under medication.
  2. The experts did not explain why they pushed back the illness prior to 1979, the date of the crime.
  3. The experts failed to explain why they think that the crime was committed under the effect of one of the illness’ sharp strokes (hajamāt al‑maraḍ al‑ḥāddah).
  4. The experts failed to describe the illness’ symptoms (ẓawāhir al‑maraḍ).
  5. The experts did not examine the accused’s mind objectively to check whether he suffers from an ethical mental incapacity (quṣūr ʿaqlī khuluqī), as it needs to be known if such an incapacity does indeed exist, whether the accused becomes more malleable and irresponsible, or whether his schizophrenic illness makes him more vulnerable to the manipulation of others.
  6. The doctors have based their assessment on what was already stated in the case’s folder, rather than placing the accused under surveillance for a period of time without subjecting him to medicaments.
  • 69 All indications point to a different committee from the previous one.

73As the court agreed that it needed to determine with more accuracy whether the accused the day he committed his crime was at that particular moment inflicted with a “mental incapacity” (naqṣ ʿaqlī), it set an appointment in November 1983 for a five‑member committee69 to assess the accused under the supervision of a court’s consultant. When the accused was whisked to the consultant’s office in the presence of the medical committee, he was reexamined once more, prior to the committee drafting its report.

[MR2] When the accused was examined, and questions were addressed to him by the five‑member committee, it turned out that he possessed at the time his normal mental capacities in terms of judgment, concentration, and reasoning. His thoughts proceeded logically and gradually, and he answered the questions in all clarity after understanding them, while his answers came in harmony with the questions. There is therefore no clear indication that he suffers from any mental deficiency that would either incapacitate or limit his responsibility. After going through his previous life story and questioning him on matters relating to periods before and after the incident, it turned out that his state of mind was perfectly sane (salīm), and we were unable to come up with any conclusion that would point to any severe mental or psychic illness from which the possibility of committing any crime would be imputed, even though his angered type of personality may have contributed to the crime, but that does not waver his responsibility. Moreover, he was not [at the moment of our examination] under the effect of any drug, medication, or alcoholic beverages. That was the overall opinion of the examining committee, with the exception of doctor M who considered the patient in a quiet (sākin) state, but he was ill when he committed his crime, and he still is, which means that he was not fully responsible of his crime, and that his responsibility does not add to a mere 70 percent. That is our expertise.

74It was now the defense’s turn to rebut the medical report, prompting another seven‑member examination in a hospital, but this time in light of the documents of the dossier, a request that the court sanctioned, and the defendant was examined for the fourth time in three years, in April 1984, in the presence of the same court’s consultant.

[MR3] After interrogating and examining the accused, and after consulting the documents of the case, we confirm that the accused is now in a borderline state (ḥāla ḥudūdiyya) due to his sick and immature personality, through which he might be subject to any perturbation from the outside world. He is therefore considered to be only partially responsible for his actions, and is considered a danger to himself and public safety, and therefore in need to be treated in a psychiatric hospital. But even though the patient’s state of mind has long been afflicted by his mental illness, several years prior to the crime, he nevertheless bears a 70 percent responsibility for all what he did from the day of the crime until now. This means that the level of irresponsibility (ʿadam al‑masʾūliyya) attributed to him does not exceed the 30 percent, and for this very reason he should be placed in a mental hospital so that his symptoms do not develop any further, creating greater risks for himself and society at large. That was the opinion of the majority of five of the doctors in the committee…as to doctor K [who dissented] he clarified that the accused is now in a borderline state, and his responsibility for his actions is therefore limited, but it would nevertheless be unscientific to determine a percentage for what his responsibility really is.

75On May 1984 the plaintiff’s side presented a memo to the court arguing that the seven‑member committee’s statement that the defendant’s responsibility was limited and that his actions were subject to outside effects indicate that his father was the real instigator, pushing his son and coaching him to kill the victim, which means that the father was as much responsible as the son for the crime.

A criminal hand killed a human being…but not any human being…a man who by his killing, science, justice, goodness and morality, were also assassinated. A man who lived 80 years, and in him the gestures and manners of the great Prophet manifested themselves, spreading good manners and happiness among people. But we are not seeking here to list the innumerable qualities of this good man, nor do we want to seek revenge from the culprits, as much as we want to stop harm from society by restraining its corrupt members. That is what God implied when he said that “there is life in punishment.” Life here means the life of society by undermining corruption and its effects, as any factors of corruption are even more dangerous than the criminals themselves, confirming what God has stated: “Who kills a soul with another soul, corruption will come to earth, as if all people were killed.”

76The plaintiff’s party concluded that both the killer and his father should be subject to the death penalty. For its part the criminal court issued its final ruling in October 1984:

  1. The accused was found guilty of premeditated murder (ʿamd) and should be subject to the death penalty based on article 535 of the penal code.70 His punishment is, however, reduced to three years with hard labor, based on articles 232 and 241 of the penal code, and taking into consideration the medical reports. Moreover, the punishment should be executed as soon as the accused leaves hospital, and he is forbidden to reside in Ḥamā for 10 years.
  2. The second accused, the father, was found non‑guilty for instigating murder, since no tangible evidence was available.
  3. The two accused are penalized for SP200,000 ($4,000) in compensation for the plaintiff’s party.

77As both parties appealed the verdict, the Damascus Naqḍ took hold of the case and issued its ruling on December 1985. It ruled to formally (shakl‑an) revoke the defendants’ appeal on the basis that their representative did not carry an official authorization to represent his clients. It also revoked the plaintiff’s appeal for re‑assessing the punishment on the basis that the Public Prosecution Office did not appeal the court’s ruling, leaving the plaintiff’s party appealing with their personal right, which renders the ruling valid from a criminal point of view. (In contrast, defendants have the right to appeal their punishments.) As to the other matters brought up by the plaintiff’s party, the cassation court decided:

  1. The criminal court was lost in contradictory statements when it punished the defendant with the death penalty and reduced his punishment to three years with hard labor: the death penalty implies a premeditated planning, while the three‑year punishment was based on the doctors’ evaluation of the accused and his partial responsibility for his troubled actions.
  2. The second accused was vindicated without a thorough discussion of his role (or lack thereof) in the crime.
  3. The court did not explain how it came up with the value of cash compensation.
  4. Even though the penal code does not recognize blood money compensation (diya) as such, it is still looked upon as a strong guiding principle (mabdaʾ) when assessing material compensations, which judges ought to consider (rule 1049 of the criminal encyclopedia).
  • 71 That is, the ʿāqila in the language of the fiqh.

78With the cassation ruling behind, and with the prosecution out of sight, the case now centered on personal civil rights and material compensation. The plaintiff’s side took hold of the cassation’s opinion that the diya ought to be looked upon seriously since it is de facto within customary law, arguing that sharīʿa law assesses the diya of a premeditated killing (ʿamd) in terms of 100 female camels, 40 of which should be pregnant (Ibn Rushd, Bidāyat al‑mujtahid, 2:402; al‑Fiqh ʿala al‑madhāhib al‑arbaʿa, 5:368). For their part, the defendants argued that the illegal burning of their home ought to be deducted from the compensation. When the criminal court revalued the compensation to SP400,000 ($8,000), taking this time into consideration the status of the victim, the defendants appealed the decision, adding to their previous claim of the cost of their burned home, the argument that the diya in sharīʿa law should not only be paid by the defendants (which in this case meant the father on his own, since the son was diagnosed as mentally incapacitated), but also by the entire family and tribe (ʿashīra).71 When the court reassessed the compensation on April 1987 one more time, it lowered it to SP250,000, taking into consideration this time the victim’s old age (close to 100). Finally, when the defendant made a request to leave the hospital, a medical committee found on February 1989 that he still suffered from the same symptoms, and his request was thus denied.

Common understandings and misunderstandings

79The participants on both sides kept for years struggling with their common stock of knowledge in order to determine whether the accused (and his father) were legally responsible of the murder. As no one denied the occurrence of the murder, while the person who committed the act did not deny it either, the case shifted towards the mental capacity of the accused, and to a lesser degree, towards the father’s responsibility (even though it remains unclear how the father became a secondary suspect). The general assumption behind every crime is that legal responsibility is causally linked to the act of the perpetrator; or, in other words, the incidence of responsibility is attributed to a human being (or a juristic person, state institution or corporation). In homicides legal responsibility is expressed in the general division between carefully planned and executed crimes (ʿamd) which may be subject to the death penalty, and deliberate crimes (qaṣd) which are subject to a lesser punishment. Judges may, however, stumble over how to determine the difference between premeditated and intended crimes (not to mention accidental crimes): actors do their best at constructing what they mean by a premeditated or deliberate crime while documenting and indexing various descriptions of the murder scene. It follows then that legal responsibility, which implies making someone legally responsible for an act (which might not have been performed by the actor himself), would be meaningless without the proper work of contextualization performed by the participants—which means, above all, describing what happened from various perspectives. Legal responsibility therefore does not exist in the abstract, and becomes meaningful only when documented by the participants. In consequence, broad categories such as ʿamd or qaṣd achieve their concrete meaning in the process of documentation.

80This court stumbled over the issue whether the accused was mentally incapacitated. The criminal court was in effect reminded by the higher cassation court that once the agent is perceived as mentally incapacitated, it would then become meaningless to label his act as premeditated (ʿamd), which implies that once a person is incapacitated, he is de facto—if not de jure—not responsible. But then the central issue becomes how to determine insanity. When the Syrian penal code states in a single proposition that “A person is exonerated from punishment if he was in a state of madness (yuʿfa mina al‑ʿiqāb man kāna fi ḥālat al‑junūn)” (article 230), it leaves all possibilities open as to how “junūn” ought to be diagnosed. Would, for instance, a medical approach to madness be satisfactory from a legal point of view? In order to reach the verdict “not guilty by reason of insanity,” the court demanded from several medical committees (the last two fell under its supervision) to determine whether the accused was insane at the time of the murder, considering that a person was not criminally responsible for an act if he was insane at the time.

81In the first medical report (MR1), between the unremarkable comments on the patient’s “general attire” and the confidence of a statement like “we have unanimously decided,” were general observations regarding a person that did not seem to react all too well with his environment: he talked to himself, was indifferent, lacked reaction, but nevertheless managed to “admit” the crime attributed to him. Such descriptions could easily be attributed to any “normal” person who does not feel at home with his environment. The medical report settles on too much taken‑for‑granted assumptions about “insanity,” which it does not even bother to clearly define or wrap up in a medical language. Being a committee of medical authority, approved as it was by another legal authority, the committee had no other purpose but to state the obvious: that something was wrong with the accused. But what exactly? Since no one seems to have been interested in the accused per se but only in whether he was legally incapacitated at the moment of the crime, the whole enterprise amounted to how to formulate the accused’s responsibility (or lack thereof) in a consensual language that would have been approved by the medical participants, and eventually by lawyers and judges. As each one of the actors had his or her own interests and motivations, a viewpoint on what happened, the sanity or insanity of the accused, and whether he was responsible or legally incapacitated, a consensus had to find light from the common stock of knowledge that actors shared. Such a common stock of knowledge only becomes known, however, once the actors begin to index, document, and describe the crime scene in their own familiar language. It reveals itself, for instance, in the police reports, prosecution depositions, court hearings, and final ruling. As each utterance by the actors plays on a common understanding of the things and situations at hand, what is therefore left unsaid could constitute the main building blocks of a criminal case. For instance, since the only purpose of the first medical report was to establish that the defendant “cannot be held responsible for his actions,” the report could have been fully accredited were it not for the plaintiff’s questioning precisely of what was unsaid: the nature of the alleged schizophrenic attitude attributed to the defendant, the periods in which he might have carried such a mental illness, and, above all, whether at the moment of the crime he did carry such an illness; finally, in case he did, did that render him legally irresponsible?

  • 72 Harold Garfinkel, Studies in Ethnomethodology, Englewood Cliffs, NJ: Prentice Hall, 1967, 38.

82Harold Garfinkel famously stated that “the notion that we are dealing with an amount of shared agreement remains essentially incorrect.”72 Besides the fact that with every utterance both speaker and hearer assume a common stock of knowledge that they do not explicitly refer to, while the speaker utters his statements with the assumption that the hearer will understand, the hearer may occasionally request that the speaker clarifies what he “meant” by something. As such meaning clarifications have no end, in real life situations therefore, the process of agreement would never come to an end, as speaker and hearer could indefinitely exploit their mutual common knowledge and presumed misunderstandings (“What do you mean by this?” or “Are you sure we know what we are talking about here?” are among the most common forms of speech that would interrupt a conversational exchange in order to reorient it). At trial judges partake the sole authority to put an end to the unfolding of a case, hence to play with the notion that “enough evidence has been furnished” to come up with a verdict. What the participants therefore typically do under such strained conditions is to come up with strategies that would document the crime scene in ways that would be beneficial to their purposes and interests, hoping that they would receive accreditation from the court for what they had documented.

83In our case here, once the court approved the plaintiff’s appeal, which de facto implied that the first medical report proved unsatisfactory, another medical committee drafted a second report (MR2). In itself, the second report, even though it completely reversed the findings of the previous one, did not bring any new element of knowledge: the diagnoses in the first and second reports were so poor, leaving so much taken‑for‑granted knowledge, that they could have been so easily swapped with one another while completely reversing their conclusions. Notice how in MR2 the emphasis had all of a sudden shifted to the accused’s “normal mental capacities,” which now made him fully responsible for all his acts, past and present: the accused was diagnosed as someone with good judgment, logical, concentrates well, and “sane.” The court had to push for a third medical report (MR3) to reach a compromise. In MR3 the accused was perceived as living in a “borderline state” with possible “perturbation[s] from the outside world.” The doctors, save for a single dissenting voice, were even able to quantify the accused’s responsibility—70 percent.

  • 73 See, Chapter 1.

84One can deduce from such medical flip‑flops that “anything goes” as long as the participants are satisfied, or as long as the court is able to reach that “borderline state” among the parties. A more thorough examination of all three reports reveals the following. (a) Both parties endorsed beforehand the judgment of the medical authorities simply because there was no legal language that would have been able to assess the defendant’s state of mind. Michel Foucault describes such a juridical attitude as one of doubling, where the judge doubles into a judge–doctor, and where the traditional legal authority finds itself unable to meet the very demands set by the Napoleonic penal code regarding the rationalization of the crime, and its attribution to a “sane” individual.73 (b) A medical authority is assumed to be “scientific” and “impartial,” hence it would provide all participants with a “neutral” objective language. (c) The three reports, while implicitly claiming the impartiality of science, mostly played on matters that the participants understood but were left unmentioned, in particular the crucial issue as to how the doctors were able to determine that the accused was labeled “sane” or “insane,” “responsible” or “irresponsible.” (d) Whenever one of the parties felt dissatisfied with the medical report, it would request more documentary evidence for what was left unsaid. The documentary evidence kept shifting between the purely medical and the legal history of the case. (e) All three medical committees operated in languages that were at best vague, shifting their analysis and conclusions in such a way only to satisfy the party of appeal. (f) As each party waited for something more to be said, each one played the game of appealing over what was un‑said, until something more satisfactory came up. (g) In principle the game between the two parties could have gone forever, as it was arbitrarily cut short by the court’s decision to proceed on its own.

85As it was difficult for all three main issues—the defendant’s “insanity,” the father’s presumed “responsibility,” and the cash compensation—to come up with a neutrally “decisive” language, which would have been approved by all participants, the actors documented the crime scene by means of extra‑legal and biographical events. Thus, when the two accused were summoned to compensate the plaintiff’s party for SP200,000, without, however, providing any rationale for the assessment of the compensation, it was the cassation court that bailed out the lower criminal court by giving customary practices—that is, blood money (diya)—their due course, even though there is no explicit clause in the post‑sharīʿa and post‑Ottoman modern penal code for doing so. In similar vein, in all three reports the events regarding the alleged defendant’s insanity were specifically vague. The depicted events thus left open the issue of documenting the defendant’s insanity by the participants themselves: when, for instance, the defendant’s family home was burned immediately after the crime, there was a presumption that the accused—due to a presumed mental incapacity—could not have acted on his own, hence his father must have been the instigator.

  • 74 Alain Supiot, Homo Juridicus, “La raison humaine n’est jamais une donnée immédiate de la conscience (...)

86Let us imagine a situation where the medical committees would have acted more professionally: longer examinations of the patient, a better use of the medical findings (interviews, statistics, charts and graphs), comparisons with other medical cases (local and regional), or reports that would have integrated such findings with one another (personal observations of the patient integrated to findings in the medical literature at large). Let us also imagine that police, prosecutors and judges would have proceeded more thoroughly at collecting evidence, interrogating witnesses, and conducting the hearings, not to mention the drafting of the rulings, would have such radical changes forced the participants to adopt alternative strategies? Would a better professional attitude of both medical and legal authorities have created a more “neutral” territory for handling such cases? (One route that, for instance, neither medical nor judicial authorities fully contemplated regarding a presumably mentally disordered person was that person’s ability to understand, in particular the ability to understand specifics: signing a contract, inheriting, or committing a crime, each of which implies a different kind of understanding and responsibility.) What is certain is the more the judiciary (and related authorities such as the medical) would opt for procedures and languages situated outside the common stock of knowledge (that is, the customary norms), the more they would become autonomous in the sense of distancing themselves from common practices and norms. The importance of such a judicial autonomy is that it would enable individuals, groups, and institutions to bypass some of their normative values in order to abide by state legislated rules of law. In other words, the more the judicial and medical authorities hide behind their professional jargons, which must lie outside the common sense norms, the greater the opportunities provided for actors to come up with alternative strategies of societal integration. The assumption here is that state controlled rules of law would have as their main purpose a better cohesiveness of society that would not limit itself to common religious, ethnic, tribal or regional norms.74 But whatever the degree of autonomy of state institutions and their judiciary, for purposes of conducting their everyday affairs persons will always have to index and document their being‑in‑the‑world with their common stock of knowledge even in societies with greater institutional powers (political, economic and scientific). What is therefore “seen but unnoticed” (Garfinkel) will always constitute the basis for daily conversations whose taken‑for‑granted undertones and routinized symbolic interactions prove necessary to minimize interference.

  • 75 See, infra Chapter 9.
  • 76 Which is fairly common in honor killings, where statements like “I’ll fuck your mother!” or “I’ll f (...)
  • 77 See, infra Chapters 6 and 9.

87The homicide committed by Hilal in the passionate spirit of slaughter translated the attacker’s offended dignity, his sense of humiliation at the hands of “partners” who were willing to test his will at every juncture. In the world of shepherds’ property as land and property as livestock are both regarded as primordial assets. “Property,” in the conventional sense of the term, has boundaries separating insiders, or authorized users, from outsiders, or unauthorized occupants, and these boundaries are often sensed as sacred. Can such notion of property make sense in a conventional rural economy where trespassing means having one’s livestock “freely” graze over a property claimed by another shepherd? Between Hilal and his opponents‑victims it was a conflict over what Hilal “owned” on his own, as his private property, and what his opponents claimed to be part of that “collectivity” known as “the wall.” In that kind of very low‑income rural economy, property does not reach the level of juridical abstraction common to capitalist markets. Indeed, it is as if the “privacy” of one’s property is constantly tested through trespassing, rather than through juridical protection, even though the latter is formally available in the modern nation‑state. Thus, the initial trespass of a property boundary that has been collectively consecrated triggers an honor game of retaliation no different from the ones that we will encounter later.75 But if defilement of property rights brings vengeance, which authority consecrates the boundaries among the various protagonists? To be sure, property has a symbolic value attached to it, but the more the economy in question rests on basic means of survival, the symbolisms tend to be attached to personal perseverance and the will to protect and desecrate. Hilal recounted in detail to his counsel how his opponents tested his will at every juncture, not only by trespassing over what he claimed was “his” land, but also by trespassing over the other’s honor, that is, his wife: by making obscene statements on Hilal’s woman and family, attacking the other’s most intimate primordial object, his opponents sealed their fate as future victims.76 Hilal’s case could have therefore very well fitted among the honor killings or the land vendettas that we will analyze later.77 But what makes it unique was his counsel’s attempt to frame Hilal as a complete idiot who was unable to understand the implications of his murderous act. Hilal’s “idiocy” works as a supplement to his (denied) self‑consciousness in particular in his correspondence where he was struggling to define himself as a bounding self: I am fully aware and responsible for what I did! It is at this juncture that Hilal unexpectedly joins our second unnamed protagonist from Ḥamā: having both been the subjects of scrupulous medical examinations, their homicides became secondary to the “illnesses” that various committees saw in them. Which led in the final analysis to a framing of the crimes “outside” the boundaries of the juridical jargon per se into the domain of what the French penal system would dub as the personnalité of the offenders. The Syrian system by contrast evades the routinized personnalité evaluation at all costs, introducing it willy‑nilly whenever the death penalty is at stake and once the “sanity” of the offender becomes the contentious issue at trial.

Notes

1 An alternative formulation is la vérité n’est que mensonge.

2 For a thoroughly critical evaluation of the law‑and‑norms literature, see Robert Weisberg, “Norms and Criminal Law, and the Norms of Criminal Law Scholarship,” The Journal of Criminal Law and Criminology, 93, nº 2–3, Winter–Spring 2003, 467–591.

3 Richard Posner, The Problems of Jurisprudence (Cambridge, Mass.: Harvard University Press, 1993), 230.

4 Posner, Problems, 361.

5 Or, following Claude Lévi‑Strauss in his pioneering studies on mythology, the rules of law and those of society are “stored” in the unconscious, which organizes them into meaningful discourse. The norms are thus primarily a linguistic construction, which achieve their meaning for the individual and collectivity only through language and discourse, and which as such are “outside” the subject, acting like the big Other. There is therefore a structure to the unconscious, which itemizes individual and collective norms, which gives shape and meaning to the processed imageries. In other words, norms achieve their symbolic value only once they would integrate within a comprehensive socio‑symbolic structure, and in that regard, they act like myths, in which form primes content: the unconscious is like an empty signifier which processes the images that traverses it by providing structure and meaning to their content. Lévi‑Strauss perceives therefore a parallelism between Freud’s analysis of dreams, which in effect are nothing but a chain of signifiers that are structured like a meaningful language, and whose meaning is precisely detected (by the subject or analyst) only relative to a totality rather than in their individual components. As is well known, Lévi‑Strauss’ triadic structure of symbolic, imaginary, and real, has become since the 1950s the groundwork of Lacanian psychoanalysis; see, Claude Lévi‑Strauss, Anthropologie structurale, Paris: Plon, 1958, 1974, pp. 224–225; Jacques Lacan, Le mythe individuel du névrosé, Paris: Seuil, 2007, tackles the “relational function of symbols” in relation to dreams and myths, both of which are structured like a language (as langage and parole); thus when Lacan bluntly states that “La première chose à remarquer, c’est ce qu’introduit dans le monde la parole dans sa fonction symbolique” (59), the debt to Lévi‑Strauss is here fairly obvious, in particular the view that the “elementary forms of kinship,” myths, and even rituals and masks, are linguistically formulated as forms through symbolic chains of meanings (signifiers).

6 Bruno Latour, “Why Has Critique Run Out of Steam? From Matters of Fact to Matters of Concern,” Critical Inquiry, vol. 30, nº 2, Winter 2004, 225–248.

7 Sarah Chiche, “La société face à ses malades mentaux,” Sciences Humaines, May–June 2014, 82–85.

8 See Chapter 1.

9 Or more precisely, the niẓāmī courts that were a byproduct of the Tanẓīmāt, which in Greater Syria were only implemented in the 1870s and 1880s.

10 Idlib is a city of roughly 200,000 inhabitants located in the north of Syria, 50 km away from the Turkish border point at Bāb al‑Hawa. During the Syrian wars, inaugurated in March 2011, Idlib, a quintessentially rural province with weak urban centers, became the center of insurrection against the Baathist state. The Jināyāt are the criminal courts in Syria. As Idlib is the capital city of its Muhafaza (province), all criminal cases in neighboring towns, villages, and farms are handled by the Idlib police and Jināyāt. Inmates also serve their sentences at the Idlib main prison.

11 Idlib Jināyāt 271/1994; final ruling 11/2000.

12 Syrian criminal courts have the power to reduce the penalties below the ones proposed by the criminal code for various reasons. The most common being, however, “in appreciation of…,” which implies that the amount of punishment was left to the discretion of the court.

13 I consider an account as a more preliminary form of a narrative, or in other words, a narrative is a more structured version of an account. See Chapter 2 for a discussion of the differences that ought to be made between account, narrative, and discourse, regarding the tendency within the Syrian judiciary not to give accounts their due course, and to transcribe them as if they were complete narratives.

14 They also do not seem to have been taped in the first place.

15 Which acts as the supreme court of the Syrian judiciary, an equivalent of the French Cour de Cassation.

16 Such an expression generally means that the witness did not possess any identity card, not only at the moment he was seized and questioned. That’s quite common for several reasons: either the witness did not carry the Syrian citizenship at all (for instance, he was among the estimated 250,000 Kurds that do not carry the citizenship, or a Palestinian resident in Syria), or else, which is probably the most common cause, the witness never bothered to request an identity card (either due to a lack of concern, or because of problems with the authorities: for instance, having been an ex‑inmate, or a Muslim Brother militant, etc.), even though he did carry the Syrian citizenship.

17 The first‑person plural is typically used as a counter‑balance to the “I” that narrates in an attempt to give more weight to the account.

18 Punctuation not in the original Arabic.

19 On the performative side of speech acts, see J.L. Austin, How to Do Things With Words (Oxford University Press, 1962). On the benefits of applying speech act theory in historical discourse, see Quentin Skinner, Visions of Politics, Vol. I: Regarding Method (Cambridge University Press, 2002).

20 I am translating maghdūr as victim, even though maghdūr (from the verb ghadara or ghadira) carries stronger connotations, as it involves an act of betrayal and treacherousness towards the victim.

21 In all quoted texts from the Jināyāt courts, emphasis in bold characters (and at times in italics) has been added to the original to underscore a pattern of speech and a motif in syntax.

22 Used interchangeably with ʿAkal.

23 Paul Ricœur, La mémoire, l’histoire, l’oubli, Paris: Seuil, 2000, 203ff.

24 Based on a hundred closely examined cases from the Idlib and Aleppo Jināyāt courts in the 1980s and 1990s.

25 Except when the accused dies under torture, as evidenced in C5–4.

26 Interviewed in Aleppo on 17 June 2004.

27 ʿAbdul‑Qādir Jārallah al‑Alūsī, ed., Majmūʿat aḥkām al‑§Naqḍ fi qānūn uṣūl al‑muhakamat al‑jizāʾiyya min ʿām 1988 ḥatta 2001 mīlādiyya, 4 vols., Damascus: al‑Maktaba al‑Qānūniyya, 2002.

28 Majmūʿat, 1:580.

29 Majmūʿat, 1:613.

30 Majmūʿat, 1:625.

31 Civil‑law systems have their own ways of working through precedent, namely, by codifying past rulings and transforming them into statutes ready to be integrated into future verdicts. The process of codification, however, seldom comes from the courts themselves, but willy‑nilly from lawyers, judges, and publishing presses specialized in legal matters.

32 Ricœur, La mémoire, 203.

33 Used interchangeably with ʿAql in all documents.

34 Dated 2 April 1994.

35 Dated 5 April 1994.

36 Bruno Latour, “When things strike back. A possible contribution of science studies,” British Journal of Sociology, 1999, 51(1), 105–123.

37 Émile Durkheim, Leçons de sociologie, Paris : Presses Universitaires de France, Collection Quadrige, 1997[1950].

38 Which stands for manslaughter in the Anglo‑American system.

39 Mamdūḥ ʿUṭrī, Qānūn al‑ʿUqūbāt, Damascus: Muʾassasat al‑Nuri, 1993, 197–8.

40 Which stands for first‑degree murder in the Anglo‑American system.

41 Note the abrupt change from third‑ to first‑person.

42 The hearing sessions minutes usually do not fully quote the questions addressed by judges and lawyers to the witnesses.

43 The implication here is that “the wall zone” is outside Hilal’s properties, contrary to what the defendant had claimed all along.

44 ʿAkal was a “suspect” for having allegedly used force against both the accused and his son.

45 Since the lawyer’s heirs kindly authorized me access to the folder’s case in 2004 (the lawyer in question died in 2001, a year after the verdict), only some of the original letters that were included in the file are quoted here. It remains uncertain, however, whether the defense forwarded them to the prosecution or whether they were later included in the Jināyāt’s file. In a number of cases, I have seen letters of inmates originally addressed to either the prosecution or defense (C4–1), or to the Jināyāt court itself (C4–2), included in the final file upon which the verdict was based. What goes on between lawyers and their clients is after all strictly confidential, and it is up to the former to decide what to include or exclude from their presentation of the case.

46 Punctuation and emphasis not in the original Arabic.

47 Italics added: the land—or the village wall—is already categorized as “privately” owned, hence excluding the claims of others in what appears as a subtle strategy to rebuff the victims’ claims.

48 Notice how Hilal substitutes Shamsa, which to the very end he denied killing, with maternal cousin, which by all accounts is incorrect.

49 Anwar was a minor at the time.

50 Notice how the narrator Hilal (or whoever wrote on his behalf) uses a third‑person indirect anonymous style, instead of the direct “I,” to describe the shootings, and the purpose of which was obviously to minimize any wrongdoing on his part.

51 Both the police and the Jināyāt final ruling mention that Ibrahim’s sister was shot to death, side‑by‑side with Ibrahim and one of his sons, while a second son who was on the scene accidentally escaped the same fate simply because no bullets were left in the rifle. It is not clear, however, why Hilal got the woman’s shooting wrong: was it intentional or not?

52 Nuri’s identity and relation to the protagonists was not revealed.

53 Literally, the witnesses of public right, or those that were summoned by the prosecution.

54 All of which were from the victims’ and plaintiffs’ family.

55 The Syrian penal code, which was enacted in 1949 during the brief dictatorship of Ḥusnī al‑Zaʿīm, and which is based on the modern Egyptian and French codes, is entirely modern and secular, and hence does not borrow much from the sharīʿa.

56 Hilal uses homes in plural throughout his correspondence, but it remains unclear what he owned besides his main house.

57 The third son and only survivor of Ibrahim al‑Muhammad who was also present at the crime scene when his father and brother and sister were shot to death.

58 Hilal tends to mention his homes in plural, even though the official documents refer to a single home, the one close to the crime scene. By contrast, land is in most cases singular, even though in the preceding sentence it was used in its plural form.

59 Unclear what is meant by this expression. It could be public lands with no specific owner.

60 Punctuation added in the translation below.

61 The expression originally occurred in the 1965 military medical report, quoted above.

62 Medical committees are always set in odd numbers. Since the first committee had three members, the following one should have five. If further committees are needed, the numbers of 7, 9, 11 and 13 are the rule.

63 Harold Garfinkel, “Common‑Sense Knowledge of Social Structures,” in C. Gordon and K. Gergen, eds., The Self on Social Interaction, New York: Wiley, 1968, 71–4, reproduced in The New Modern Sociology Readings, Peter Worsley, ed., New York: Penguin, 1991, 543–8.

64 Peter L. Berger and Thomas Luckmann, The Social Construction of Reality, The Penguin Press, 1967.

65 Ronald Dworkin, Law’s Empire, Belknap Press, 1988.

66 The case was reported and discussed by Muhammad Fahr Shuqfeh, “Naqṣ ahliyyat al‑qātil fi jarīmat al‑qatl,” Qaḍāyā wa‑abḥāth qānūniyya: al‑ʿadāla fi al‑qaḍāʾ al‑sūrī (Damascus, 1997), 203–21. Even though the author fails to bring to his readers many crucial details about the case (police and prosecution depositions, statements uttered by the accused that would have pointed to his state of mind and the possible motivations behind his act, and the lawyers’ memos addressed to the court), most of the material proves of importance for our purposes here, in particular when it comes to the legal incapacity of the accused. It remains unclear, however, why the suspect’s father was targeted from day one by the outraged mob, leading to the burning of his home, and why the court made him a second suspect with the charge of instigation. Moreover, there are no indications that anyone was charged with arson.

67 Medical Report 1.

68 Emphasis in bold and italics is mine.

69 All indications point to a different committee from the previous one.

70 The Syrian penal code is known as Qānūn al‑ʿuqūbāt, “the punishment law,” and was initially promulgated in 1949, with minor amendments over the years.

71 That is, the ʿāqila in the language of the fiqh.

72 Harold Garfinkel, Studies in Ethnomethodology, Englewood Cliffs, NJ: Prentice Hall, 1967, 38.

73 See, Chapter 1.

74 Alain Supiot, Homo Juridicus, “La raison humaine n’est jamais une donnée immédiate de la conscience : elle est le produit d’institutions qui permettent à chaque homme de donner sens à son existence, qui lui reconnaissent une place dans la société et lui permettent d’y exprimer son talent propre. Dès lors que cette identité n’est plus garantie par l’État, les hommes s’efforcent de la fonder sur autre chose : sur une Référence religieuse, ethnique, régionale, tribale, sectaire, etc…”

75 See, infra Chapter 9.

76 Which is fairly common in honor killings, where statements like “I’ll fuck your mother!” or “I’ll fuck your wife!” are meant as proto‑psychotic rejections of the symbolic fiction maintained by the community.

77 See, infra Chapters 6 and 9.

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