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The Crime of Writing

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Zouhair Ghazzal

Prologue

Texte intégral

1This book wrestles with the notion of the “archive” for a newly formed society like Syria: what is the “archival” material that would make it possible to construct an anthropological history of the nation‑state? Contemporary scholarship operates with an inherent division between high‑minded theory and valuable “archival” material which serves as “objective evidence” for the narrative at work. What if such division represses the fact that all such images and texts that are labored as “archival” have more value than their assigned “evidentiary” role? Once we open an “archival” work to the vast operation of hermeneutics, what would become manifest is an unlimited process of interpretation of texts, where evidence is just one side of the equation.

2I have attempted such approach in my previous work on The Grammars of Adjudication, published in 2007 in the same Ifpo collection. In the Ottoman fin‑de‑siècle, what is it that could be considered as an “archival” corpus that would serve as groundwork for an understanding of the transition from Ottomanism to colonialism and the independent (postcolonial) state? Even the presumed chronology that such temporal concepts carry seems out of place, as it betrays the fact that they do not operate autonomously from one another. It is well known that in Ottoman studies the archival material of the local sharīʿa courts, in addition to the millions of documents that had emanated from the imperial bureaucracy at the center and in the peripheries, all constitute, in the eyes of scholars, the much desired object of the projected narratives. Such view, however, in all its innocence, falls prey to a couple shortcomings. First of all, it takes the “archive” all too literally as “documents” emanating from institutional (state) authorities, be it the local sharīʿa courts, cadastral and taxation registers, reports and memos by the various bureaucracies, or the sultanic orders. The prioritization of “documents” over “texts” poses all kinds of conceptual difficulties by reducing their role to that of “evidence”: what becomes “relevant” is how a certain “document” is read in relation to a topic that matters for the sole concerns of contemporary historiographical work; hence to an approach that is all together “external” to the document in question. Would it be possible to reconsider such documents as texts endowed with a meaning of their own, and which could be revealed to us through the elaborate work of interpretation and hermeneutics?

3I have such concerns in mind in the present work. The subject matter is the criminal court records of the two cities of Aleppo and Idlib, both located in the troubled Syrian north, from the 1980s to the present. What is it, under such conditions, that would constitute the “archival” work? Where is it located? The error would be to limit the penal and criminal records, like the ones we have at our disposal in this study, to their juridical and sociological dimensions. It is in this respect that the notion of an open archival work could be relevant.

4Law does not only consist of the laws, statutes, and legislations enacted by jurists and lawmakers. Nor is it limited to what the courts do (and cannot do) and the verdicts of the judges. What is important is the entire process of power struggle between the parties in conflict, the way they frame, represent, and narrate their disputes; how they mobilize their resources through and outside the court system; how they make use of the law in the hope of defeating their opponents. Needless to say, the judge’s rationale for drafting the verdict neither stands on its own, nor is it the most revealing event in the dossier’s long march. In the narrations delivered by witnesses and suspects, what sometimes stands out are the most marginal bits of the narratives—marginal at least in the eyes of the lawyers, judges, and scribes who scrupulously recorded them, but nonetheless averted them as irrelevant. There is that uncanny feeling of left over marginalities, of details, sufferings, agonies—and lives—that no one dared to speak about; of judges and experts reading texts—and looking at people—with the spectacles that they have been accustomed to in their professional lives. Power relations are primarily structured on the ignorance of the reality of the Other; this same Other who will be the object of the juridical and judicial processes.

5Topoi like madness, sexuality, crime, the economy, are “realities of transaction,” réalités de transaction, which are born from the interplay of relations of power that elude the social actors that produce them, wherever they are situated. Not only do such realities of the lifeworld, and the practices and discourses that they engender, fail to settle once and for all, they are neither universals nor do they have an essence that reveals their systems of truth. Their truth is rather delivered in that transaction between the multitude of realities within spaces of power and modes of government; spaces that cross the boundaries of science and fiction; medicine and law; reason and madness; and the spaces of law and political economy.

From the primal scene to the crime scene

  • 1 With the notable exception of Gabriel Baer, “The Dismemberment of Awqāf in Early 19th‑Century Jeru (...)

6When I accidentally stumbled in the mid‑1990s upon civil and criminal cases from Aleppo and Idlib, both in the troubled Syrian north, at a time when I was working on Ottoman modes of discursive reasoning for my book The Grammars of Adjudication, I was not aware of the difficulties ahead. Judges at Aleppo’s Palace of Justice were helping me decipher the hidden meanings of the Ottoman sharīʿa court texts, in particular the “procedural fictions” (ḥiyal) that were all too common in the Ḥanafī fiqh, but to which few scholars have paid much attention.1 One of those judges mockingly told me, “I hope you’re not taking those documents literally, as if they’re telling the truth. What appears at face value as a genuine litigation (khuṣūma) is only a faked one (ḥīla). It enables the system to survive with its changing times without, however, modifying its core premises. If we’re unable to discern a genuine litigation from a faked one, we’re doing a disservice not only for Ottoman studies but modern Syria as well.” So I’ve asked him the obvious question, “How do we know?” And his remedy was surprisingly straightforward: “Because we’ve got similar procedural fictions in our civil system today.” That is how, in a nutshell, I became interested in modern law, its social underpinnings, and the logic of narrative, realizing all too suddenly that I had to straddle between two worlds: the defunct Ottoman ancien régime, and the modern nation‑state, both an outcome of modernizing efforts, beginning with the forgotten Egyptian expedition in 1832–40, which initiated the Ottoman Tanẓīmāt, on the one hand; and the French mandate, up to Syria’s independence and the promulgation of its modern civil and penal codes in 1949 on the other. More importantly, I realized that what law pretends to be is neither its reality nor an illusion, but is rather inscribed within a social and symbolic order which becomes real only when it cannot sustain itself through its fiction.

  • 2 All cases are numbered by Chapter, see, supra, Table of Cases.
  • 3 Civil cases present the researcher with a different difficulty for access and handling than crimin (...)
  • 4 Lebanon keeps a much better archival record for its modern cases than Syria, hence civil and crimi (...)

7It was that same judge who offered me by way of initiation, hoping that I would soon turn to the modern court system, an unforgettable gift: a hefty criminal case which his assistant had lying over his cramped desk and to which he was paying no attention; a packed 500‑page or so dossier of a woman, resident of a middle‑class Aleppo neighborhood, who was accused of killing her much older husband in order to protect herself from an alleged affair with another man (C4–1, which would serve us as template for analyzing “biographical narratives” in Chapter 4).2 Strange as it may seem, considering Syria’s stellar reputation as a “hard” and “rogue” country, collecting criminal cases turned out a more manageable task than securing the badly needed facsimiles of the Ottoman sharīʿa courts, the Tanẓīmāt majālis, or the sultanic orders for Beirut, Aleppo, and Damascus.3 But because the Ottoman archives were properly conserved and indexed, their custodians wanted researchers to consult them on location in Damascus and Beirut (which lacks a proper archival center), hence photocopying, at least before the digital age, had to go through various legal and illegal hurdles. By contrast Syria’s modern court archives are stored in warehouses at the basement of each Palace of Justice, whereby beyond the 20–25‑year grace period legally required for conservation (for a possible retrial of criminal and civil cases, which is very rare), the file would in all probability be on its way for “recycling,” unless it has been forgotten, or else unless the space at the warehouse is generous enough to accommodate a few more years.4 Obviously duplicates of final rulings are stored in various departments, hence verdicts tend to survive the onslaught of time. But what can one do with a verdict on its own?

  • 5 The downside to the lack of an archival center, however, is that not all of my cases are “complete (...)
  • 6 See, supra Table of Cases: all cases are numbered by Chapter. This book was constructed from thous (...)

8Since the mid‑1990s, therefore, I was caught in a double dilemma. On the one hand, the majority of criminal files prior to the 1980s have not survived; while those which have been conserved in the last three or four decades are not properly indexed, hence are not meant for consultation by researchers; which makes a systematic study of cases, even for modest purposes, nearly impossible. On the other hand, case‑files are all over the place at the Palace of Justice, and requests for photocopying could be generous, at least much more so than for the Ottoman archives. Moreover, with the Xerox revolution in the 1980s, when normal paper has replaced the aging thermal rolls, photocopying became a lucrative business in developing countries like Syria, whereby modest Xerox shops with top of the art machines around bureaucratic centers would do marvels. It was indeed in the 1980s that lawyers and judges took the good habit of Xeroxing their case‑files for a quiet consultation at home or in their office. I therefore received “gifts” from the employees of the Palace, lawyers and judges; hence if I suffered from anything it was from an abundance of cases rather than from any shortages.5 By 2007, the year I became persona non grata in Syria for reasons I still ignore, I had accumulated close to 100 criminal files from Aleppo, Idlib, and their provinces. The size of a file would vary from a modicum of 25–50 pages for honor killings (Chapter 6), to 500 pages for homicides whose mystery took over a decade to unlock. A rule which I had adopted in my Grammars of Adjudication became even more timely here: no case would be included in my research unless I had possession of the Xeroxed file in its entirety. Thus, out of the 34 cases in this study,6 which were selected from my original database of the hundred or so cases, only five (C1–1, 1–2, 1–3, 3–2, 5–1) relied exclusively on printed sources, while the 29 others are based on the original materials of the case‑files. This enabled me to repeatedly come back to my cases at my own leisure when working on this book between Aleppo, Idlib, Beirut, Chicago, and Princeton, with fresh perspectives which varied from an attention to the logic of narratives, or the sociological “editing” of narratives and interviews, up to psychoanalytic analysis. My choice of cases is therefore arbitrary, not only due to a lack of properly indexed archives, or because I have benefited from generous gifts from lawyers and judges, or because we are in the dark beyond the 1980s, but mainly because my prime motive is a book that looks seriously at the logic of narrative; hence the need to choose cases, organized in themes, that would fit together well enough in the context of a thematic book. The purpose here is not solely to analyze how a case was won or lost, or how judges make their decisions, but for an in‑depth look at the logic of narrative and discourse, whatever the source of enunciation.

  • 7 I address in Chapter 2 the distinction between narrative and discourse.

9In contrast to studies of “Islamic law” and society which have thus far been the norm, and which tend to focus on broad historical trends (what sharīʿa, civil and penal law represent in Islamic societies; the repressive nature of the Syrian state; the relations between law, society, and the economy), this study aims at detail, narrative, discourse, circumstance, explication, event, and the perspectives of actors on the events unfolding before their eyes. The purpose is indeed to modify the scale of analysis that we have been accustomed to. Thus, instead of broad assessments of Syrian (or Arab) politics, economy, society, law, and crime, we are operating at a much smaller scale, en détail rather than en masse, where primacy is accorded to individual actors narrating a crime scene; how the latter is interpreted by lawyers and judges; how concerns of law and order, as perceived through the eyes of popular culture, manifest themselves in the case‑file at hand. We are therefore aiming at a change of scale—from the macro to the micro—in order to magnify all proportion, to provide relevance to events that have been neglected, deemed as irrelevant for the conduct of history, or else for the lives of individuals. Once we base our perspective on what the actors are doing and saying, we realize that what primarily concerns them is the narration of the crime scene; to advocate for a family member or close friend; to argue that a homicide was not premeditated, but “only” manslaughter. In changing the scale of analysis, we want to get at what the social actors themselves think and speak of a criminal event: how they narrate it, how their narratives are constrained by the norms of the judicial authorities, and how at times, they reorganize the crime scene by writing their own narratives (Chapter 4). What is at stake is that fine grain of history, the opening of narrative to the quotidian, the imperceptible. It is, indeed, that access to the narrative that marks our en détail démarche to documents, texts, crimes, and facts. To do so, we need to acknowledge the importance of the infinitesimal, the quotidian, the taken for granted, names, gestures, dreams, dialogues, biographies, sexualities, images, dates, pleas, all of which would not stand the dignity of history unless we take narrative and discourse seriously.7 The reader would therefore have to bear all that monotony, detail, repetition, agony, of events that may or may not be of interest—but what for? Is it for the sake of a “marginal” and “rogue” country like Syria, to reach out for what is extraordinary and unique but nevertheless neglected, either because the documents were of little interest, or else they would not command the attention of the reader (be it Syrian, Arab, or universal)? We are into a situation where every detail may matter, precisely because it has been devalued by historians, criminologists, and legal analysts alike. We want to revalue that aspect of the quotidian to which experts of sorts and legal analysts have only shown intermittent respect.

  • 8 See my Grammars of Adjudication: the economics of judicial decision‑making in fin‑de‑siècle Ottoma (...)

10In the Ottoman ancien régime of the sharīʿa court judges and their scribes were so concise that they did not leave much room for participants to expose their mindsets. A courtroom operated under the authority of a judge, who in turn represented the will of the sultan. The legitimacy of the system rested on trust rather than on the validity of proof: what was valid was not admitted as such because of its congruence with an empirical reality of facts, accounts of witnesses and expertise reports, but because of its validity within a chain of reasoning, and the authority of transmission and transmitters, as endorsed in a particular school of law, the madhhab.8

  • 9 Avi Rubin, Ottoman Nizamiye Courts: Law and Modernity, London: Palgrave Macmillan, 2011.
  • 10 Or the aḥwāl shakhṣiyya, a modern term that replaces the old farāʾiḍ in the Ḥanafī fiqh; Syria’s f (...)
  • 11 See the discussion in Chapter 1 on “attenuating circumstances” and presidential pardons.

11But although by the second half of the nineteenth century, the Ottomans had introduced many modernizing features within their legal system, beginning with the French‑based model of the niẓāmī civil‑law courts,9 by the First World War, however, the entire mode of reasoning of the Ḥanafī fiqh, with its sharīʿa courts, traditions of transmission, and authority, had become by and large inoperative. Indeed, the sharīʿa courts had been marginalized and relegated to operations of personal status,10 and even within such reach, the “sharīʿa” had replaced what used to be carefully thought opinions within each madhhab: in other words, the “sharīʿa” becomes that global empty signifier towards which various practices are relegated, without any need to index opinions to chains of transmitters or prestigious jurists for that matter. All of a sudden, between two devastating world wars, the old system had fallen behind the logic of modernity, and although the modern codes were not there yet, lawyers and judges, now trained in the law schools of Damascus, Beirut, Paris, and Lausanne, were eager to promulgate codes that would match novel practices. To be modern meant to reject the past, to accept the validity of reason and its limitations, rather than divine ordinances and the arbitrariness of the will of the sultan, and his representative the judge. A case, whether civil or criminal, would obey to a rationality: motives were a constituent part of each subject, hence a criminal’s motive was an essential aspect of the crime, which needs to be comprehended, rationalized, put forth in writing, and argued in public in the space of the courtroom. Not only would forensic evidence emerge as the prime tool for analysis of the crime scene, but by opening each case to its facts and motives, the judiciary found itself unable to limit itself to juridical reasoning alone, as the expertise of doctors and psychiatrists became paramount in the decision‑making process of criminal courts, and at times, even civil courts. Thus, by opening Pandora’s box to the factuality of each case, within the bounds of reason, outside the norms of religion and the political authority of the sovereign, there was that unease in making decisions: how to decide in a secular world, and what would be enough evidence prior to vindicating a defendant, or detaining him or her for life, or arguing for the death penalty. Indeed, the severity of the original Napoleonic codes (to which the late Ottomans and modern Syrians belong) was such that juries and judges would opt for acquittal rather than life incarceration or the death penalty; hence the leverage accorded by the “attenuating circumstances,” the originally Napoleonic circonstances atténuantes, which meant that juries and judges would now act more modestly at assessing the validity of facts while opting for reduced sentences.11

  • 12 The irony is that in the U.S. millions of dollars of taxpayers money are spent on full verbatim tr (...)

12Such newly revamped juridical discursive space, which pell‑mell accommodates accounts of witnesses, interviews, expertise reports, medical and psychiatric reports; letters of inmates addressed to friends, family, counsels and judges; memos by counsels and judges; newspaper clips that mirror public opinion; and, of course, the verdict itself which seals the case, all of which formulated in writing, metamorphoses as an objective “externalized” artifact which is the dossier, that bizarre object that circulates around, between lawyers, experts, and judges, and which turns crucial for the indictment. But it is as if such forensic writing were not enough, that there is no solid ground of legitimacy for judges to decide, as if no decision could on its own stand firmly without those uncanny circonstances atténuantes, which in the final analysis would only help at mitigating punishments simply because of uncertainties regarding evidence, motive, and the personnalité of the defendant. To elaborate, the dossier, which exposes so many voices in such limited writing space, surpasses juridical reasoning per se, as no criminal case could be self‑contained within the sole reasoning of the juridical, which not only must seek for outside expertise, primarily medical expertise, but also must contend with what ordinary people have to say, what they have to tell their lawyers and judges, and what they have to tell the world at large. Let people “speak for themselves” is therefore the prime motto of judiciary procedures, but which only operates within the huge constraints of the writing process—which in itself constitutes a major difference with Anglo‑American common law, where courtroom experience is central12—as if the enterprise of judging has become more sociological, delving into the subconscious of society, than juridical, in conformity with the formalisms of codes and statutes.

13In sum, the controlled expansion of the dossier signals a couple of transformations in relation to the Ottoman (or French) ancien régime: first of all, the absence of divine and personal ordinances in the name of the sovereign implies assembling a case around a multitude of anonymous voices, whose validity claims are governed by the methodology deployed by the judicial apparatus.

14Second, such proliferation of voices, all of which, pima facie, share the same unequal space of the dossier, have into them that indeterminate claim for truth, which only the method of the judiciary would bring to determinacy (that is, the ability to locate, in the context of the written dossier, what is a valid claim). Third, those anonymous voices are uneven in their relation to the crime scene, mixing the testimonies of witnesses with expertise reports and reports by attorneys and judges. What is unique here, in particular in civil law jurisdictions, is that all such voices are textualized in the space of the dossier, which in turn, by virtue of such textualization, transforms the dossier into an objectified artifact, transmissible as such among various authorities, until the final verdict seals the case. Fourth, the multiplicity of lay and expert voices, in conjunction with the nature of evidence, robs the judiciary from its legal reasoning, as the proliferation of statements from all sides cannot be solely contained through juridical reasoning: the dossier overtly metamorphoses into a combination of literary and anthropological enterprises, while its juridical side loses momentum. In sum, once we move from the arbitrariness of the sovereign, it becomes more problematic to issue verdicts that would make sense for legal experts and laymen alike. As modern systems are centered on the rationality of crime, the ability to explain, persuade and convince public opinion, send someone to jail, impose life sentence, or subject a defendant to the death penalty, open a host of insurmountable problems, which would only lead, as a consensual measure, towards mitigated rulings, special pardons, and judges who must manifest that personal human side in them. As I argue in Chapter 1, the purpose of the “attenuating circumstances” is precisely to bridge that gap between the austerity of the law, on the one hand, and public opinion and its regional and customary practices on the other.

  • 13 See, Chapter 2.

15Each homicide unfolds into a double crime. First of all, the “real” crime itself, where the victim unjustly lost her life at the hands of a brutal assailant, assuming, of course, that the crime was not in self‑defense. Second, the crime itself is recounted from a multitude of perspectives, using diverse voices, from lay to expert. Lay witnessing is here prime, as it denotes popular culture and opinion, and also because it stands at the core of the dossier.13 What is often overlooked, however, is that all such narratives are textualized in the limited, though indefinite, space of the dossier. That is to say, textualization comes through the symbolic power of language: the crime is narrated through language, hence the textuality of crime belongs to the domain of the symbolic. Once the crime is recounted, transformed into language, it eclipses the real crime into the symbolic. Hence writing itself is a criminal act, because it substitutes the “real” crime for its textualization, and once the crime is into the domain of the symbolic, the victim is dead (or victimized) for a second time. The dossier unfolds in a fictitious time, one which is not real, but an outcome of the symbolic power of language. If people feel such dread at writing, it is because language kills that real carnal bodily pleasure, transforming it into a symbolic artifact of sorts.

  • 14 Jacques Lacan, Des Noms‑du‑Père, Paris: Seuil, 2005, 41: “The concept is time itself.”
  • 15 Slavoj Žižek, Violence, London: Profile Books, 2008, 52: “What if, however, humans exceed animals (...)

16Jacques Lacan, in resonance with Hegel’s Phenomenology of Spirit, famously stated that “le concept, c’est le temps.”14 What this means is that the concept articulates itself through the symbolisms of language; and once the reality of the concept is not there anymore, it incarnates itself through its duration, that is, time, as an object that is narrated and which replaces the real one unfolding in real time.15 In other words, the power of language is such that its real undisclosed location relies precisely on representation, that is to say, as a structure that stands apart from the (Kantian) things‑in‑themselves, as a separate realm of order and meaning. Thus, a criminal dossier constitutes a symbolic representation of the crime scene, one that manifests itself through the power of language, which is detached from and sits in a different realm from the thing‑in‑itself, the crime scene. For the judicial process, it is indeed such symbolic representation that enables the constitution of the dossier as an objectified artifact, which disseminates hand‑to‑hand. One has therefore to murder the real object to be able to represent it in time: the representation is here Hegel’s concept, which replaces the real object in time. It consists at claiming that the symbol of the object is this object. When the object is not there anymore, this object is incarnated in its duration (time), separated from itself, but which through the sheer act of representation could still be present to itself—and at your disposition. A process of decompensation, therefore, where the inability to recompense for the original real object, which is not there anymore, is instead compensated by representing the object in its duration (time).

  • 16 Which have been randomly selected out of 100 closely studied case‑files. As I will elaborate below (...)
  • 17 This is best elaborated, with a particular focus on the geographic and economic development of the (...)

17The 34 crimes under scrutiny in this book,16 spanning from the 1980s to the 1990s and beyond, happened at a time when Syria was already weary of Ḥāfiẓ al‑Asad’s “rectification movement.” Even though, upon its inception in 1970, the “movement” (al‑ḥaraka al‑taṣḥīḥiyya) promised to reintegrate the old commercial and manufacturing bourgeoisie into its ranks, it did so only reluctantly, that is to say, by revitalizing the professional middle class while reducing its ability to freely maneuver outside the statist regulations. By 1986, when Mikhail Gorbachev was general secretary of the Communist Party of the Soviet Union in 1985–91, and president in 1988–91, the financial system had already collapsed, leading to a drastic reevaluation of the Syrian Pound vis‑à‑vis the dollar and other hard currencies. In a nutshell, the Soviets under Gorbachev’s leadership have dared to ask the Syrians, which thus far had been surviving under long‑term mortgage plans, to pay for all their transactions, including the much venerated military equipment, in full cash. By 1991, under an overpraised Investment Law 10, the Asad régime had grudgingly acknowledged a reform that did not dare speak its name, namely, that its very survival was pending on what the old Sunni and Christian manufacturing and commercial bourgeoisie would be able to deliver in goods, services, and hard currencies. In effect, a major loophole of the Law was that it kept obscure the mechanisms under which the exchange between local and hard currencies would be pursued. Notwithstanding the debacle of the deadly episode of the Muslim Brotherhood in 1979–82, Aleppo seems to have benefited the most from both the fall of the former Soviet Union and the weary infitāḥ of the Asad régime; it may even have capitalized as much as 25 percent of the totality of private investments in the 1990s, coming directly in second position to the capital Damascus in total investments. When Bashshār al‑Asad inherited power in June 2000, he did at the same time provide more impetus to Law 10 while restricting major projects in telecommunication, finance, and manufacturing to his loyal circle of family clan, sitting or retired crony bureaucrats, and the upper middle class bourgeoisie.17

18More significant perhaps is that the two Asad régimes—père et fils—share a reputation for cruelty. As is common knowledge, “suspects” of sorts are seized, arrested, interrogated, humiliated, sent to jail, tortured, for their political beliefs, party or religious–ethnic affiliations, or sheer hostility for the Baath or the régime itself: where would then private “ordinary” crimes, like the ones analyzed in this book, stand? Should we separate, like in a lab experiment, between what stands as private as opposed to the political? Is it possible to separate the two domains of the private versus the political? Or is such separation an illusion of academic research? Strange as it may seem, this was not that hard an issue to deliberate upon. As the reader will come to realize, a great deal depends, in both civil and criminal cases, on routinized procedures, whatever the political régime in place. It is, indeed, as if the Syrian penal system (not to mention the civil), deliberates autonomously on its own, not much disturbed by what goes on in the political arena. Crimes happen in all societies, whether totalitarian, authoritarian, or liberal, and in this respect, the judiciary apparatus is more concerned in processing crime than politicizing it (or its consequences). Hence the focus in this book is on process, representation, the construction of the dossier as an objectified artifact, than on anything political per se.

19But then the sociological claim of routinization, of social actors immersed in their daily routines, not giving a damn as to what goes on in the public sphere, is shortsighted. As Renata Salecl has convincingly argued regarding the “absence” of publicity to “ordinary” crimes in the defunct socialist Eastern Bloc,

  • 18 Renata Salecl, The Spoils of Freedom: Psychoanalysis and Feminism After the Fall of Socialism, Lon (...)

20Official indifference to the ‘ordinary’ crimes against the socialist order arose because the law did not function as a presumably neutral point of authority. The law was always in the service of the communist cause. Thus the most serious offence against the law was opposition to the system and not ordinary criminal activity…The socialist system itself transgresses the law in order to become a law unto itself.18

  • 19 It remains an open question as to why Arab crime TV serials, which these days are produced for the (...)
  • 20 I am using here psychoanalytic Freudian and Lacanian concepts that will be elaborated upon further (...)
  • 21 Psychoanalysis in its (undeclared and unchartered) relation to crime is explored more thoroughly i (...)

21Salecl is raising the obvious question as to why in the then‑socialist régimes “ordinary” (private) crimes did not make it to the forefront of the media (mostly state‑run) outlets, as is routinely the case in liberal democracies: that is to say, why are ordinary crimes not acknowledged as such? Such remark certainly applies to observed differences between Syria and neighboring Lebanon. With very few exceptions, when one of the official Damascus‑based newspapers obliquely reports a crime, in very short barely noticeable synopses (C4–1, 8–2), only to condemn it for its incivility, crimes are not publicized in Syria, as if all that matters are crimes against the state; in neighboring Lebanon by contrast there is that frenzied enthusiasm for crimes that go out of the ordinary.19 In the liberal media in general, serial and mass killings or obscene murders with sexual undertones are eye‑catching because they portray murderers whose superego “bypasses” all the conventional norms of the big Other; as if the public‑at‑large is perturbed by its own repression once it surrendered its own egos—the source of desire—to the socio‑symbolic order.20 The fantasy of an ego “free‑to‑kill,” preponderant in the media and Hollywood‑inspired movies, fascinates precisely because it sets all action in a futuristic linear time: the freedom‑to‑kill now would only come as a retributive hubris in the future, once justice (not necessarily that of the state, but of private individuals as well) reappears as justified retaliation (notice here the logic of capitalistic equal exchange). In other words, fantasy, structured in linear time, comes at the rescue of desires impossible to meet, simply because we have surrendered our traumatized egos to the socio‑symbolic order; trauma, in contrast to fantasy, works in a repetitive thematic nonlinear structure.21

  • 22 Salecl, The Spoils of Freedom, 105.
  • 23 Salecl, The Spoils of Freedom, Chapter 7.
  • 24 Salecl, The Spoils of Freedom, 99.
  • 25 Hence the notion of sexual difference, which should not be confused with gender difference, which (...)

22Salecl is therefore justified when she claims that the serial killer in the then‑socialist countries “reveals the ultimate lawlessness of socialism,” hence his public “absence” in favor of political crimes—those committed against the state.22 As “the socialist system itself transgresses the law in order to become a law unto itself,” the killer emerges not as someone whose superego reveals that obscene “freedom” of liberal societies, but rather where the superego evinces the dark side of the law of socialism. In a chapter on “crime as a mode of subjectivization,”23 Salecl portrays crime as revealing “the blind spot in our identification with the law, which is how we relate to the law in a very specific way.”24 It is, indeed, the paternal metaphor of the Father (the Name‑of‑the‑Father, which is not to be confused with the “real father”) that institutes the social and symbolic order of the Law, while the Law only operates by recognizing us as subjects responsible of our own actions. We therefore come to the world through a double loss, that of surrendering to the socio‑symbolic order, which is the order of narrative and discourse, on the one hand, and to the language of the Law on the other. Since the Father is the one who subordinates the child to the principle of the Law as symbolic order, the loss of the child operates through a double bind. First, the Father breaks apart the imaginary relationship between mother and child (the imagined sexual bond), which leads to the child’s castration and repressed sexual desires (C6–4); second, the symbolic force of Law bespeaks the symbolic power of the Father. Hence the double loss of the child, that of sexual satisfaction, which in Lacanian psychoanalysis cannot be formulated through the symbolisms of language,25 hence remains at the mercy of the real; and that of submission to the socio‑symbolic order.

23The psychotic criminal too operates on such double loss, that of the lost object of desire, and that of the loss of subjectivity. The criminal outmaneuvers his fantasy on the (im)possibility of recovering his loss in linear futuristic time, that of the past and present, and the future when the loss is recovered. Because the recovery of the loss is impossible, due to the unbridgeable gap between subjectivity and the socio‑symbolic order, the criminal identifies his loss with a victim that cannot meet his fantasy of recuperation. The psychotic metamorphoses into a criminal once he targets his victim as an objectified recuperation for his loss. The psychotic lives through that uncanny trauma that he is on the verge of losing his victim, as she would be unable to reciprocate his desire. By eliminating his victim—by projecting death into the future—the psychotic thinks of controlling his traumatic experience in linear time, instead of thinking trauma as unexplainable in time. Crime is therefore an attempt to anticipate the traumatic event of separation.

  • 26 Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism, rev. (...)
  • 27 For example, in the case of Turkey, in the Kemalist secularist discourse, not only is the episode (...)
  • 28 Todd McGowan, Out of Time, 183–5.

24We can now reconsider the interrelations between individual (criminal) development and the path of a nation like Syria which denies recognition to ordinary crimes in their relation to narrative and time. When in Imagined Communities Benedict Anderson contends that the “imagined” time of “nationalism” moves through “homogeneous, empty time,” the implication here is that the “imaginary” plays on the fantasy of linear time for the sake of a coherent narrative that would bring the nation together into a nation‑state: “The idea of a sociological organism moving calendrically through homogeneous, empty time is a precise analogue of the idea of the nation, which also is conceived as a solid community moving steadily down (or up) history.”26 Of relevance in the construction of “imagined nationalism” is that the chronology could go down, from a foundational present to selected episodes of the past, which is how habitually national official history tends to be constructed.27 Although individual identity usually moves forward in time, from birth to present, hence in the opposite direction of an “imagined nationalism,” the traumatized psychotic, however, to which the criminal constitutes a variant, organizes memory around the reoccurrence of a failure.28

  • 29 Michel Foucault, ed., Moi, Pierre Rivière…, Paris: Gallimard, 1973, 327.
  • 30 Jacques Revel, ed., Jeux d’échelles: La micro‑analyse à l’expérience, Paris: Seuil–Gallimard, 1996

25It would therefore be unbearable to forget that all those “ordinary” crimes, which have been unraveling underneath the cruelty of the two Asad régimes—accounts which were delivered without a reference to masters, leaders, or politics—do manifest the anguished individual development in the shadow of a forced collective identity, hence their denial in the official media. They do indeed look like those anonymous voices that could have emanated from anywhere, voices of criminals, the oppressed, the insane, with no masters, and which stand on their own, outside politics, as the voices of unreason. As Michel Foucault foresaw in his analysis of the 1835 parricide of Pierre Rivière, “all such accounts recount a history without masters, populated by frenetic and autonomous events, a history beneath power and which stands against the law.”29 But how did parricide and regicide make sense, if at all, in the mind of a Pierre Rivière: did he think of his crime individualistically apart from a post‑revolutionary (and post‑Napoleonic) France where regicides were the specter that haunted politics? Would it be unreasonable not to think of the extraordinary in relation to the ordinary, all those habitual crimes which have nothing political in them and which cement the vicissitudes of daily life? It would make more sense to rethink such “parallaxes” more as impossible antinomies than as shortcomings in a methodology that focuses on the individual over the political. Such an impossibility for a totality, however, while favoring one level of analysis over another, would not reflect a naïve idiosyncratic choice: historiography, for one, is plagued by “parallaxes” between the macro and the micro, the socio‑economic and the political, or the individual versus the collective; which level of analysis is more truthful, which one renders reality more correctly; in other words, we are faced with what Jacques Revel, pace the Annales crisis in the 1980s, has dubbed as jeux d’échelles, the change of perspective as an outcome of the scale of the analytic enterprise.30

  • 31 Stanley B. Lubman, Bird in a Cage. Legal Reform in China After Mao, Stanford: Stanford University (...)
  • 32 Benjamin Carter Hett, Death in the Tiergarten: Murder and Criminal Justice in the Kaiser’s Berlin,(...)
  • 33 See Chapter 1, the section on “Criminalizing the law.”

26But even in neighboring Lebanon, a fairly liberal society by Mediterranean standards, the mass political killings in the 1975–1990 civil war would dwarf all “ordinary” nonpolitical killings. As a rule, therefore, whether a society is liberal, authoritarian, or totalitarian, ordinary killings have their own logic and mystery, even if in times of upheavals the borderline between what separates the political from the nonpolitical tends to be obscured. Students of the law in some of the most notable authoritarian or totalitarian systems—Maoist China,31 Nazi Germany,32 or North Korea—would generally hasten to contend that such countries had all the resources to substantially modify their civil law legislation in order to render them more congruent with their populist ideologies (communism, national socialism, Nazism). Syria by contrast owes a lot to its Arab neighbors, primarily Egypt and Lebanon, for the rapid promulgation of its civil legislation in 1949–53; hence its jurists have limited experience drafting complete modern codes from scratch. And, to add insult to injury, when attempts were made in 2009–10 to promulgate a comprehensive new personal status code, as a replacement to the aging 1953 code, on the basis that family and social relations have modified in over half a century, alleged prime drafts (all of which had their authenticity denied by the Syrian ministry of justice) were published on the web, now designating Jews and Christians under the old dhimmi label; but the revamping was aborted, with only few addendums appended to the old 1953 code. The sheer incompetence and inexperience in drafting codes is precisely why the 1949 penal code still operates in pretty much the same way as it always did. As to the 1949 civil code, it should have had received a major revamp by the 1970s, when it became pretty clear that the economic philosophy of state “socialism” was there to stay, and that basic freedoms regarding property and the right to associate (the latter were already invalidated during the union with Egypt in 1958–61, never to be reinstated) were fading in favor of state‑owned collective property. Which should have in all logic pushed the first Asad régime in the 1970s and 1980s, prior to the limited economic liberalization of the 1990s, to redraft the civil code in toto, as if to declare once and for all the existence of “a new (socialist) republic.” But Asad and his entourage refrained from going this way, and in its stead, his presidency saw the proliferation of laws and decrees that made the possession and transmission of property problematic, to say the least.33

27If we need to be constantly reminded of the broad relationship that the state maintains with its legal system, it is primarily to realize how much resources were scarce, and that there was, in the final analysis, no commitment to formulate a cohesive discourse either for politics, law, society, or the economy. It is, indeed, that kind of patchwork, and to put it bluntly, the sheer weakness of the state in terms of its resources, that makes the private stand as private. Thus, there was never that predilection to create a “socialist family,” or to impose sexual norms, or even to limit population growth, as the likes of India and China once did: everything that falls within the domain of the family remains regulated more by kin and religion than by what the state has to offer, including socialist education. Such a centrality to family, kin, and religion—to everything that is private and nonpolitical—should come as no surprise in the criminal cases in this book. Herein lies the unpolitical nature of such cases, even in a society known for the brutality of its state apparatuses: the judicial apparatus, in conformity with statist policies, looks upon family, kin, and religion, as quasi‑autonomous spheres of the lifeworld, not to be transformed by what the law has to offer. The law, therefore, only intrudes because it has to, only to place the social actors on the bargaining table all over again. Which all amounts to routinized procedures of a certain kind, as described in this book, rather than a blunt or subtle political program intended to subjugate the private to the public.

28If the crimes in this book do connect anywhere, it is, indeed, in relation to popular culture and its sacrificial rites. But the reader must be alerted that no attempt was made here for such a connection: the resources are simply not there to bridge such a gap in our knowledge. Suffice to say, however, that some of our protagonists have volunteered on their own, in the deep loneliness of their prison cell, to inscribe on paper their own narrative of the murder (récit du meurtre) that they had allegedly committed, even if they did confess or kept denying any involvement to the very end (Chapter 4). It is probably in such personal accounts that the individual meets the historical, or where the individual meets popular representations of crime and sacrifice. It is, indeed, in such accounts that defendants do account of their alleged responsibility in the first‑person singular, promoting this “I” which police reports and interviews by prosecution and judges kindly bypass; it is in such writing practices that “grievances” are plainly voiced, even if there was no one to listen.

29If the Ottoman Tanẓīmāt of the 1840s to the 1870s constituted the first breakthrough from the old sultanic legal order, the 1950s, amid the plethora of legal codes that were promulgated on short notice in 1949, routinized codes and procedures through practices that by and large are still efficient today. Our approach to the legal system is specifically through its court practices, that is, its case‑files. There is a longstanding tradition in legal studies that looks at the formation and evolution of law primarily in terms of the system’s codes, de facto assuming that the code’s norms are “applied” through the courts. Stated differently, legislators and jurists are the ones who “formulate” the law through various codes and statutes, doing their best to maintain a sense of coherence, while lawyers and judges normally “apply” the law by “interpreting” the codes through court practices. Such a view comes with several shortcomings, which for our purposes I will limit to two only. First, by giving priority to the process of drafting codes, it leaves other levels—a fortiori the courts—at bay in a reduced passive role, robbing them any effective agency of their own. Second, the depiction of the law as in its very essence a process of drafting codes and statutes portrays this prime noble level as the “theory” of law, while the rest is “practice,” that is, subjugated to the legal norm as enunciated by codes or statutes. Such a démarche, however, fails to document how much work is done in court to delineate the thin borderline between the legal and illegal, which in turn constitutes the zone of demarcation between facticity and validity in any legal system. Finally, needless to say, the drafting of codes and statutes, and subjecting them to parliamentary approval, even though an abstract and theoretical enterprise, is itself a practice in the same way that working through case‑files is the quintessential practice of the courts. To wit, the whole notion of a “theory” versus “practice” in the legal sphere, where the latter is “guided” by the former is simply superfluous by all accounts.

Figure 1: Jināyāt criminal dossiers at the warehouse of the Idlib Palace of Justice in summer 2007. The files would survive for 20–25 years on average, the legally required period of conservation after the final verdict and appeals, after which they would be dispensed with for recycling.

Figure 1: Jināyāt criminal dossiers at the warehouse of the Idlib Palace of Justice in summer 2007. The files would survive for 20–25 years on average, the legally required period of conservation after the final verdict and appeals, after which they would be dispensed with for recycling.

30Our entry point to the legal system is therefore through its court practices and discourses, more specifically the case‑file system. A case‑file is comprised of various documents—texts and images—which were assembled in the process of an examination of a case by judges and courts for the sole purpose of coming up with a verdict. In the Syrian system, the police report, which examines all available suspects and witnesses within the first 48 hours of the occurrence of a crime, constitutes the prime document for a case, while the verdict from a local court, with a possible ruling from the supreme court in Damascus (Naqḍ), constitute the case’s closure. What happens in between is the subject of our analysis here: all documents that have been drafted by policemen, judges, lawyers, doctors, suspects and witnesses, psychiatrists, forensic experts, and other professionals, are of prime interest. The “case” materializes therefore as an artifact—that is, as an objectified thing that is referred to by a number, which circulates around, and debated—once it is materially associated with a “file.” It is indeed this combination of case and file that matters in its textuality, in particular in a civil‑law system with no juries to deliberate. First of all, our choice of the case‑file stems from the fact that it assembles the totality of available documents, the same ones that the court would consider for its verdict, which means that there is no need to “expand” the case beyond its material file, for instance, in the form of investigations that the researcher may be inclined to conduct. Useful as they may be, interviews and other information are not stricto sensu part of a case‑file, hence they are outside its textuality per se. Second, this restriction to the case‑file, omitting all “outside” elements, reduces the case to its textuality. From our perspective the analysis of documents‑as‑texts should be limited to their inner logic and construction as texts. Third, the textuality of the case‑file would enable us to diagnose the case from the vantage viewpoint of its protagonists, that is, the judges, lawyers, plaintiffs, defendants, witnesses, doctors, and court experts who made the case possible. Needless to say, such a three‑pronged approach to law—the case‑file, its textuality, and the actors’ experience—would not see light without the patient detailed labor on each case individually.

31My main argument is that by closely looking at “how a case‑file works” we are researching how the legal system constitutes itself as a system through its self‑referentiality. As law is one institution in society among many others (politics, the economy, education, the sciences and media communications), which can only survive as an autonomous institution through the creation of its own internal boundaries, what is at stake is what precisely differentiates law from other parts of society. What the detailed analysis of case‑files would do is precisely that “internal” view at the law: observing how systems use self‑produced observations. The textuality of a case‑file implies that we respect the user’s experience as represented in the document‑as‑text.

  • 34 See my Grammars of Adjudication, Beirut: Institut Français du Proche–Orient, 2007, Chapter 11.
  • 35 As far as Greater Syria was concerned; in independent Egypt, and other parts of the Empire, the mo (...)

32In Ottoman times, the sharīʿa courts would seldom handle criminal cases, while “evidence” was limited to what the two parties had to offer, in the sole presence of the judge and his scribe, with no professional lawyers (even though the system did admit “representatives”).34 With the implementation of the secular nizami courts in the 1870s and later,35 once modern penal codes took “evidence” as “facts” that would be validated by third parties, evidence would change from a system of formal proofs to assessments of internal states: intentions, motives, rationality or irrationality of action, sanity or insanity of the actor, or more broadly, the motif du crime. In this modern process of producing evidence, assessing it, and drafting it into reports, procès‑verbaux, and testimonies, the court would take all action in its hands, while being at the mercy of outside expertise.

Plan of the book

  • 36 The tribal and clan‑oriented ʿashāyir never stood in the Baath lexicon as a class on their own, to (...)
  • 37 Slavoj Žižek, “The Fear of Four Words: A Modest Plea for the Hegelian Reading of Christianity,” in (...)

33In Chapter 1 we begin exploring our first three “criminal” cases, which are essentially “economic” in their core. Based on secondhand accounts, they place the vulnerable position of our protagonists in the context of the so‑called “socialist economy” of the second Baath, that of the “rectification movement” of then‑president Ḥāfiẓ al‑Asad. Once the Baath moved in the 1970s to an ideology of defending “socialism” as an economic policy in support of the working classes and the popular and liberal professions (peasants, state employees, teachers, shopkeepers),36 a parallel policy of incriminating the “liberal” transgressions against the “socialist state” set foot in the annals of criminal law. Our protagonists were inter alia accused of transgressing the “socialist economic norms” of the state for simply indulging into “liberal” economic practices like trading in hard currencies below the official rate, or else for “hoarding capital” outside the circuits of state‑owned banks and financial institutions. Under such circumstances, the motto “property is theft” works well for the rejuvenated Baathist state of Ḥāfiẓ al‑Asad. But in such instances who is transgressing the law, the state or the alleged criminal who bypassed the “socialist economic policies”? Slavoj Žižek’s notion of “the law is criminal” plays both ways: the state is criminal by imposing its own “socialist” policies, and the individual transgressors are criminal in transgressing the state’s overt criminality.37

34Besides discovering our first cases, Chapter 1 elaborates on themes, as it explores loosely connected topoi that would serve for the rest of the book, and which will be explored individually in relation to the cases in each chapter. Chief among them is the validity of the statistical data on crime published yearly by the Bureau of Statistics in Damascus. The problem with such figures, besides their uncertain accuracy, is that they have not been scrutinized to the test of sociological and economic analysis in order to draw some meaningful conclusions. Thus, a problem that surfaces from the plethora of statistical data is the unexplainable variations that would all too suddenly emerge from year to year.

35Other themes that we have explored in Chapter 1 question the French influences over the Syrian civil‑law system. Such matters would only have been a matter of historical curiosity were it not for their philosophical and practical connotations to what the courts do in their daily transactions. Chief among them is the practice of circonstances atténuantes, which was originally appended to the French Code pénal in 1832, which mitigates for causes of uncertainty what may have been a harsh ruling, and which the Syrians have incorporated in their penal code since its inception in 1949 as al‑asbāb al‑mukhaffifa al‑taqdīriyya. Another amendment, which also became operative in 1832, touches on démence‑as‑insanity, is incorporated as junūn in Syrian penal law, and which would render a defendant ineligible to stand trial. Michel Foucault and his team at the Collège de France in the 1970s have traced the philosophical (and theological) origins of such practices, delving into the uncertainties of judicial decision making since the end of the eighteenth‑century classical age, to which we have given ample consideration.

36Chapter 2 pursues the thematic elaborations with some thoughts as to what evidence and eye‑witnessing imply: in the absence of hard forensic evidence, eye‑witnessing and the confessions of witnesses become paramount in Syrian procedures. We conclude this chapter with the concept of the split subject common to Lacanian psychoanalysis, which would serve as the main conduit among cases in this book: namely, that the subject cannot be conceived as a coherent whole, divided between a subject of knowledge and an object to be known. In its stead, we argue that the subject is already split between a socio‑symbolic order which it acknowledges, and an imaginary desire which cannot be apprehended by symbolic knowledge, remaining elusive and outside the confines of speech and language.

37Although Chapter 3 is on insanity, reason, and the law, its real purpose is to fully expose a single case from beginning to end, from the moment the police receive notice of the crime; up to interviews and investigations; reports, memos, medical investigations; court hearings and verdict. We benefit from what we have learned in Chapter 1 regarding démence, namely that once a defendant has been declared mentally incapacitated by a medical committee (or more than one), he would not fit anymore for trial, a concept that goes back to an amendment to the 1832 Napoleonic Code pénal, and which has been transplanted to many civil‑law countries. Notwithstanding such legal transplants, the validity of which we have articulated in Chapter 1, societies document insanity differently, and in this instance, the validity of the counsels’ arguments and counter‑arguments on their defendants’ insanity takes a macabre turn. I argue that the Syrian system, which eschews the chapter on personnalité common to French criminal procedures, as exposed in Chapter 1, has to face it sooner rather than later.

38Chapter 3 therefore brings together the themes of reason and insanity in conjunction with the systematic unfolding of a criminal case, beginning with the police investigation that inaugurates the case‑file with its suspects and witnesses of the crime scene; the follow‑up of the prosecution and investigating judge; the preliminary synthesis and recommendations of the referral judge; the reports of lawyers and forensic and medical experts; up to the verdict, and, when applicable, the Damascus upper‑court Naqḍ ruling. Chapter 4 follows suit with two cases were the “auto‑biographical” element, in the form of letters drafted by the two defendants‑inmates to their families, lawyers or judges. Considering that such biographical statements, delivered in writing in the intimacy of a prison cell, would not be accounted for in the verdict, yet included in the dossier, what purpose do they serve? Why should they be of prime importance for the researcher?

39Chapter 5 raises the crucial issue of the death penalty which is still active in many parts of the world today. When it comes to Syria, the death penalty could be recommended by a military tribunal and executions may take place in public, as was the case in Aleppo in October 2007, when a youth‑“gang” terrified the city all summer in assaults, robberies, and killings, and whose members were executed at the city center in public viewing, in wake of a verdict issued by a military tribunal in Damascus. The other cases are less sanguine and more private, as executions, amid a presidential decree that would endorse the Jināyāt verdict for the death penalty, secretly took place at the main prison yard in the early morning hours, as if the “privacy” of the inmate should be sheltered from public view; or else to shelter the public from ordinary crimes.

40In Chapter 6 we come to “honorable killings,” as they’re inaptly labeled by the Jināyāt. Even though such crimes do come in sorts, what predominates is a type of killing where the woman is victimized by a male offender from her family charging her with allegations of “promiscuous sex.” The case‑files of such killings are—literally—the thinnest among all those analyzed in this book: as the assailant immediately acknowledges his crime at a police station in the hours after the crime was committed, a one‑year ordeal is all what it takes; a presidential decree in 2010 raised the ordeal to two years, which already includes early detention and court hearings.

41We pursue the honor theme in Chapter 7 where the killers and their victims are in this instance all males. Rivalries within and among families and clans create an atmosphere of permanent intergenerational warfare within the community. Victims are thus simply targeted for no other reason but for belonging to the opposing family or clan, while their killing is meant for no other purpose but to perpetrate inter‑clan violence, which, in the final analysis, constitutes an internal mechanism for a politics without the state. But the state must intervene, as it does in all other crimes, whatever their nature: What happens then under such circumstances, when longstanding feuds do receive the procedural juridical attention of state authorities? In such cases, the state would typically opt for manslaughter over first‑degree murder, even though, such killings are a quintessential blueprint for premeditation, at least more so that any of the premeditated killings in this book.

42We inaugurate Chapter 8 with a parricidal case where a daughter kills her mother, prior to burning down the home where she had lived with her husband and teenage son. Like the two cases analyzed in Chapter 4, the daughter drafts in her prison cell a letter where she explicates her motivations. I propose to look at such killings in terms of suffering and healing, in light of a third‑party imaginary audience where the assailant is projecting herself as acting for the common good.

43Chapter 9 brings us back to the logic of honor and inter‑clan warfare, but this time in relation to land, its possession, and transfer among generational agnatic lines. I argue that once clans are not anymore those homogeneous entities of harmony, subject as they are to class divisions in a capitalist market economy, relationships between landowners and their tenant farmers take a new turn. Finally, Chapter 10 brings to light other aspects of the market economy, namely, the services which are at stake in a middle‑class urban environment, amid the state’s routinized corruption. Crime becomes an efficient tool to circumvent such routinized services by offering more lucrative deals. In sum, crime creates a new order whereby the difference between criminal and non‑criminal activities is contained in a gray impenetrable zone.

Acknowledgments

44This book would not have been possible had I not benefited in 2003–05 from a Fulbright grant that enabled me to work for two years as visiting professor at Aleppo University with weekly visits to the Palace of Justice; and a fellowship from the Institute for Advanced Study, School of Social Science, at Princeton in 2008–09, where I completed my first draft sitting for hours at the very comfortable Marquand Art Library at Princeton University, going over their rich collection of photographic portfolios whenever I was stuck with my criminal cases.

45In Aleppo it was retired judge Saʿd Kawākibī, who had inherited all that knowledge in the Ḥanafī fiqh from his learned family (ʿAbdulraḥman Kawākibī was known as Aleppo’s first expert muḥāmī, “lawyer”), who had initiated me to modern civil and criminal law. Kawākibī died on the evening of August 18, 2013, when Aleppo became a battleground that pitted governmental forces against a cohort of Islamic and secular militias of sorts. Once I received his many encouragements, I had to find my own way in the bureaucratic routines of the Palace of Justice. I was soon to realize that rather than seek official permission from the higher echelons of the Palace, or the ministry of justice in Damascus for that matter, it would be more practical to seek help from the employees of the department of crime, the Jināyāt, at Aleppo’s Palace. From the 1990s to my last visit in 2007 the department had two scribes working for the two criminal courts; a third court was added for a brief period under heavy workload. Most of my work was completed under the guidance of Fārūq Khaṭṭāb, the then‑scribe of the first court, and Muḥammad Qutaybah Tādifī, the then‑scribe of the second court and later the head of the Jināyāt department. Faruq used to receive me at his home for long talks, and to deliver the “merchandise,” in his popular Sukkarī neighborhood, which in summer 2012, being in the vicinity of the infamous Ṣalāḥ‑al‑Dīn has suffered extensive damage from the armed conflict that opposed the Free Syrian Army (FSA) to the national army. Maḥmūd Maṣrī and ʿAli Malāḥifjī who respectively headed the department of crime in the 1990s introduced me to the bureaucratic work and procedures of the Jināyāt.

  • 38 On the political significance of the slum neighborhoods in Damascus in the current civil war, see, (...)
  • 39 “Shared Social and Juridical Meanings as Observed in an Aleppo ‘Marginal’ Neighborhood,” in Myriam (...)

46Ḥasan ʿAbd, who was a sociology student of mine at Aleppo University, invited me on many occasions to his “slum”–ʿashwāʾī neighborhood of Karm al‑Muyassar (east of Aleppo) and to the “procedural fictions” at work in such neighborhoods to come to terms with the “illegality” of transactions.38 I owe him the knowledge and generosity for the article that I published on his neighborhood, which in 2012 was extensively damaged.39

  • 40 “Droit et société,” in Baudouin Dupret and Zouhair Ghazzal, eds., La Syrie au présent, Paris: Acte (...)

47I have interviewed many lawyers and judges, too many to remember by name; among them ʿAbdul‑Raḥmān ʿAllāf, an enthusiast of “hard” administrative lawsuits and of the history of the Muslim Brotherhood since its inception in the 1940s (his father had co‑authored the movement in its formative years with Muṣṭafa Sibāʿī); Judge Shakīb Muyassar familiarized me with the juvenile courts (interviewed on 6/14/2004); Judge Ḥannā Abdel‑Nour who was a member of the mighty Damascus Naqḍ, after serving as chief judge of the Jināyāt, provided me with that rare firsthand look of the routines between the upper and lower courts (interviewed on 6/17/2004); Jalāl al‑Dīn ʿAbdul‑Karīm (interviewed on 2/9/2005); ʿAbdul‑Ḥayy al‑Sayyid who presides a law office in Damascus is an extremely attentive reader and connoisseur of Syrian and international law; he offered a subtle critique to an early draft on my analysis of contemporary Syrian law.40 Now that Syria is going through its bloody civil war, I owe them more than what they could have possibly given me: I did not realize back then, when we were in peaceful time, how much their testimonies meant to me.

48When making the shift from Aleppo to Idlib, a city of 150,000, which in May 2015 fell in the hands of the Islamist opposition, the big surprise was that the Idlib Jināyāt were much more comprehensive in their investigations, as if more work needs to be done when communities are small and everyone knows everyone else, which gives the Idlib files a more polished look, even though forensic evidence remains all the same extremely poor. The late Michel Ghannūm and his assistant Yaḥya “Abu ʿAwaḍ” Ḥāmuḍ introduced me to the complexities of Idlib’s life, its inner‑family feuds, economy, and court system. When Michel, an experienced lawyer in civil and criminal law, offered me as a “gift” his “best” case prior to his premature death in 2001, I was shocked when I realized that for a schoolteacher who was accused of killing her husband in 1983, the death‑penalty verdict came no sooner than 1994, while her execution took place at Idlib’s courtyard in the early hours of January 1st 2004, as if to celebrate the cruelty of the New Year (C5–5). Sure time can wait—but why all that wait? Maybe in small communities time is an additional factor for healing fractured families and relations, while in Aleppo, Syria’s largest and prime industrial city (over 3 million) there is that uncanny feeling of anonymity in spite of the importance of kin and family: the investigating process up to the verdict tends to be a bit more informal and mechanical, which implies less bargaining over time, even though a case may unexpectedly drag on for no reason.

  • 41 Of particular significance is Sharāra’s study of “political crime,” Ayyām al‑qatl al‑ʿādī, Beirut: (...)
  • 42 “Jāmiʿat al‑khawāʾ al‑Baʿthī,” in Mawt al‑abad al‑sūrī. Shahādāt jīl al‑ṣamt wa‑l‑thawra [The Deat (...)

49When working on the book‑manuscript I have gained from many formal and informal comments, as well as invitations to read a chapter in public at a seminar, conference, or workshop. In Beirut Waḍḍāḥ Sharāra and Muḥammad Abi Samra kept me busy with their prolific output, their renewal of modern Arabic, which is hard to keep up with in my forced exile.41 In our long discussions on Syria, Muḥammad thought of my teaching experience at Aleppo University in 2003–05 worth narrating, hence the series of personal “testimonies” that were anonymously published in an‑Nahār in January 2008, which have been recently revised in a book format.42

  • 43 Michael Gilsenan, Lords of the Lebanese Marches: Violence and Narrative in an Arab Society, Berkel (...)

50Michael Gilsenan and Khaled Fahmy invited me to their seminar at New York University in February 2009 and extensively commented on one of the chapters in this book. In one of the cases (C5–5), the woman was accused of killing her husband in 1983, received a death‑penalty sentence in 1994, whose execution in Idlib’s prison was postponed until New Year’s eve in 2003, amid a presidential decree. Michael brought to my attention the fact that time in this instance is not meant to work on evidence, but probably serves as a “healing” factor.43 To understand time better, I had to integrate psychoanalytic research involving trauma, loss, and repetition, in conjunction with criminal narratives.

  • 44 La Syrie au présent: reflets d’une société, Paris: Actes Sud, 2007.
  • 45 “The insane shepherd‑who‑writes: Is he competent to stand trial?” in Baudouin Dupret, ed., Narrati (...)
  • 46 Baudouin Dupret, Le jugement en action, Geneva: Droz, 2006.

51When teaching at Aleppo University in 2003–05 Baudouin Dupret approached me to collaborate on a collective book on contemporary Syria,44 and another project on narratives in Islamic law.45 Having introduced me to his beloved ethnomethodology,46 we have been debating since then the obscure interrelations between sociology and history.

  • 47 Antoine Garapon, Bien juger. Essai sur le rituel judiciaire, Paris: Éditions Odile Jacob, 1997.

52The first draft of this book was completed at the Institute of Advanced Study in Princeton in 2008–09, thanks to an invitation by Michael Walzer and Danielle Allen. As member of the Institute I’ve benefited from comments on various chapters by Charles MacDonald, Rick Shweder, Diego von Vacano, Yoval Jobani and Aurelian Craiutu. Additional chapters were presented at the University of Washington in Seattle, thanks to an invitation by Clark Lombardi and Reşat Kasaba; and at l’École des hautes études en sciences sociales in Paris, where I benefited from the bigheartedness of Judge Antoine Garapon, an acute observer of court practices;47 last but not least, I presented Chapter 1 at the Zentrum Moderner Orient in Berlin in November 2012, thanks to an invitation from Nora Lafi and Feras Krimsti.

  • 48 “From Anger on Behalf of God to ‘Forbearance’ in Medieval Islamic Literature,” in Anger’s Past: Th (...)
  • 49 Lisa Wedeen, Ambiguities of Domination: Politics, Rhetoric, and Symbols in Contemporary Syria, Chi (...)
  • 50 Review of Timur Kuran, “The Long Divergence: How Islamic Law Held Back the Middle East,” Journal o (...)
  • 51 L’économie politique de Damas au XIXe siècle. Structures traditionnelles et capitalisme, Damascus: (...)

53Brinkley Messick, with his indefatigable prominence on textuality, narration, and discourse, has been an inspiration ever since his publication of The Calligraphic State (1993). Wael Hallaq with his prolific output helped me shape my understanding of Ḥanafī practice, which constitutes the missing and forgotten time framework for contemporary Syrian law. Martha Mundy brought anthropology to history like no one else did. Max Weiss came to know my work from my interest on anger and emotions in Islamic literature,48 and since then our common enthusiasm in Bilād al‑Shām and legal practices brought us closer. Lisa Wedeen inaugurated the long overdue analysis of the ambiguities of political domination in Arab societies.49 Timur Kuran’s The Long Divergence, which I have reviewed,50 with great courage connected the dots between law and economics in Islamic history that I have been striving for since my inaugural work on The Political Economy of Damascus.51

54In Chicago Larry Fox, Hugh Miller, and Megan Meagher have kept me alive in the long snowy winters of the Windy City in our discussions on film, philosophy, and theology. Cory Fritch and Mario D’Amato went through the meticulous copy‑editing of a long and difficult manuscript on a society very different from theirs, but nonetheless their comments were helpful and provocative.

55Ifpo has been my “home” since my early days as a doctoral student at the Sorbonne. The Institut Français at Abū Rummāneh in Damascus was a space of retreat from the violence of the first Asad régime. In Beirut, Myriam Catusse, Nadine Méouchy, and Antoine Eid have accepted one more time to work with me on a long and difficult manuscript. I owe it to them for this final product.

56To paraphrase Jacques Lacan (and Hegel), they all helped me formulate my desire by giving me what I do not have—and which they do not have—and still lack.

Figure 2: Paperwork at the Aleppo Jināyāt in the mid‑1990s.

Figure 2: Paperwork at the Aleppo Jināyāt in the mid‑1990s.

Transliteration

57Our system is similar to that used in the International Journal of Middle East Studies. The symbol ʿ is used to indicate an ʿayn, and ʾ is used for a hamza. The diacritical marks indicating long vowels and emphatic consonants have only been included whenever necessary, hence have been generally avoided for common Arabic names.

58In all quoted texts from the Jināyāt courts, emphasis in bold characters (and at times in italics) has been added to the original Arabic to underscore a pattern of speech and motif in syntax. Likewise, punctuation has been added or modified whenever appropriate to clarify the meaning of the translated text.

Notes

1 With the notable exception of Gabriel Baer, “The Dismemberment of Awqāf in Early 19th‑Century Jerusalem,” Asian and African Studies, 1979, 220–241.

2 All cases are numbered by Chapter, see, supra, Table of Cases.

3 Civil cases present the researcher with a different difficulty for access and handling than criminal cases. Thus, because in criminal cases the accused would become a persona non grata, hence a de facto public presence, there is not much to conceal from the vintage viewpoint of the Jināyāt Department. Moreover, criminals, at least when it comes to serious crimes, tend for the most part to commit only one crime in their lifetime, hence their dossier could be viewed in isolation and need not be related to other cases: it is always the person and the case at hand that matter. Criminal files could therefore be made available to researchers, pending an idiosyncratic approval by the Department. By contrast civil cases point to family wealth and property possession, which no one bears any interest in revealing to public view, in particular the contending parties. Moreover, as each case would usually share many links to other cases for the same family, civil cases would only make sense if bundled together in portfolios that may span over decades.

4 Lebanon keeps a much better archival record for its modern cases than Syria, hence civil and criminal cases tend to survive much longer, providing better clues for historical analysis.

5 The downside to the lack of an archival center, however, is that not all of my cases are “complete,” as some of them lacked either the final or Naqḍ rulings; once the case goes to the warehouse, tracing it down becomes an arduous task. Cases offered to me by lawyers or judges may have contained documents that were private, hence may have not have been included in the official dossier upon which the ruling was based, see, for example, C3–1.

6 See, supra Table of Cases: all cases are numbered by Chapter. This book was constructed from thousands of pages of criminal court records from Aleppo and Idlib, police reports, interviews with law enforcement officials, attorneys for some of the plaintiffs and defendants, judges, court employees, and experts. Although files are numbered in reference to the year of the crime, their numbers would change as the case would drag on from year to year. Reference to file numbers may therefore not reflect their final numbering, as most of them were received prior to the case’s conclusion.

7 I address in Chapter 2 the distinction between narrative and discourse.

8 See my Grammars of Adjudication: the economics of judicial decision‑making in fin‑de‑siècle Ottoman Beirut and Damascus, Beirut: Institut Français du Proche­–Orient, 2007.

9 Avi Rubin, Ottoman Nizamiye Courts: Law and Modernity, London: Palgrave Macmillan, 2011.

10 Or the aḥwāl shakhṣiyya, a modern term that replaces the old farāʾiḍ in the Ḥanafī fiqh; Syria’s first personal status code goes back to 1953 when the country was under the military rule of Adib Shishakli.

11 See the discussion in Chapter 1 on “attenuating circumstances” and presidential pardons.

12 The irony is that in the U.S. millions of dollars of taxpayers money are spent on full verbatim transcripts of the hearings in federal and state courts, which, in the final analysis, would not be allowed to juries in their closed‑door deliberations. By contrast, civil law legislations are based on procès‑verbaux, beginning with the police report, which perfectly makes sense, considering the textual orientation of such civil systems: everything must be clear and concise from day one, whereby confusing first‑person narratives are grudgingly re‑edited in an authoritative third‑person voice, that of a policeman, attorney, court expert, or judge.

13 See, Chapter 2.

14 Jacques Lacan, Des Noms‑du‑Père, Paris: Seuil, 2005, 41: “The concept is time itself.”

15 Slavoj Žižek, Violence, London: Profile Books, 2008, 52: “What if, however, humans exceed animals in their capacity for violence precisely because they speak? As Hegel was already aware, there is something violent in the very symbolization of a thing, which equals its mortification. This violence operates at multiple levels. Language simplifies the designated thing, reducing it to a single feature. It dismembers the thing, destroying its organic unity, treating its parts and properties as autonomous. It inserts the thing into a field of meaning which is ultimately external to it. When we name gold ‘gold,’ we violently extract a metal from its natural texture, investing into it our dreams of wealth, power, spiritual purity and so on, which have nothing whatsoever to do with the immediate reality of gold.”

16 Which have been randomly selected out of 100 closely studied case‑files. As I will elaborate below, the Syrian system neither keeps its files long enough (beyond the 20–30‑year legal period) nor does it handily index them for consultation, hence the choice of files is always random and arbitrary. The cases have been numbered by Chapter, see, supra Table of Cases.

17 This is best elaborated, with a particular focus on the geographic and economic development of the eastern coastal Alawi region, namely the Tarṭūs–Banyās–Jableh–Latakia axis, in Fabrice Balanche, La région alaouite et le pouvoir syrien, Paris: Karthala, 2006.

18 Renata Salecl, The Spoils of Freedom: Psychoanalysis and Feminism After the Fall of Socialism, London: Routledge, 1994, 105.

19 It remains an open question as to why Arab crime TV serials, which these days are produced for the most part between Beirut, Damascus, and Cairo, are practically inexistent. If, as we have argued here, crime assumes taking the criminal as subject by the judicial authorities, where the most intimate is highlighted, then do representations of crime, for instance on television, pose the problem of too much intimacy? What is at stake here is not simply the personality of the criminal but of the detective that pieces together the elements of crime, which from Sherlock Holmes to Hercule Poirot and Dashiell Hammett, share more notoriety than the criminals that they detect. What is at stake is the individual subject in relation to a theory of knowledge that would relate the self to the other. Open (postmodernist) endings, where the solved mystery would be kept away from the frustrated viewer, have become more preponderant in an age where the certainty of knowledge has eroded us. It is therefore the individualism of the subject—or “crime as a mode of subjectivization”—that would pose the most serious challenge to kin‑based societies within modern nation‑states but nevertheless ruled by patrimonial bureaucracies that are remnants of the old Ottoman imperial order. Which is an additional factor as to why ordinary crimes tend not to be publicized by the state or other media: the state constantly transgresses the law to protect its own interests, in the name of the socialist order, the people, or the disfavored classes; but also because it protects a patrimonial order to which it belongs, an order that would not want to publicize—at the level of the nation‑state—inner conflicts within groups or clan formations.

20 I am using here psychoanalytic Freudian and Lacanian concepts that will be elaborated upon further in Chapter 2 and more specifically in some cases in this book.

21 Psychoanalysis in its (undeclared and unchartered) relation to crime is explored more thoroughly in the end section of Chapter 2, and in individual cases as well. I am inspired in the analysis of fantasy and desire by Todd McGowan’s breakthrough investigation of contemporary cinema and time, see, his Out of Time: Desire in Atemporal Cinema, Minneapolis: University of Minnesota Press, 2011.

22 Salecl, The Spoils of Freedom, 105.

23 Salecl, The Spoils of Freedom, Chapter 7.

24 Salecl, The Spoils of Freedom, 99.

25 Hence the notion of sexual difference, which should not be confused with gender difference, which could be formulated through the symbolisms of language, hence falls within the socio‑historical; by contrast, sexual difference cannot be reduced to language and history.

26 Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism, rev. ed., New York: Verso, 1991, 26; Brinkley Messick, The Calligraphic State. Textual Domination and History in a Muslim Society, Berkeley: University of California Press, 1993, 2: “I have drawn on [Benedict] Anderson’s path‑breaking analysis of the print foundations of that relatively recent type of ‘imagined community,’ the nation‑state. My efforts to depict the calligraphic state are, in part, a response to his call to understand nationalism in relation to the ‘cultural systems that preceded it, out of which—as well as against which—it came into being.’” In this instance, Yemen, in its transition from Ottoman and British rule, to the Zaydi imamate, up to the formation of the two Republics and unification, represents a case‑study of heterogeneous textualities, whereby sharīʿa and fiqh texts would matter as much as republican slogans and civil codes.

27 For example, in the case of Turkey, in the Kemalist secularist discourse, not only is the episode of the formation of the Republic in 1923–27 privileged over anything else in the past, but it is portrayed as cut off from its Ottoman heritage, to which it bears no visible relation. When in the 1990s the Islamist Refah and Fazilet parties gained the upper hand in politics under the leadership of Necmettin Erbakan, it was the takeover of Constantinople in 1453 by the Ottomans which becomes the landmark event, bringing “Islam” (which by definition is pan‑national) and “Turkish nationalism” together in a problematic entente; see, Alev Çınar, Modernity, Islam, and Secularism in Turkey: Bodies, Places, and Time, Minneapolis: University of Minnesota Press, 2005, Chapter 1.

28 Todd McGowan, Out of Time, 183–5.

29 Michel Foucault, ed., Moi, Pierre Rivière…, Paris: Gallimard, 1973, 327.

30 Jacques Revel, ed., Jeux d’échelles: La micro‑analyse à l’expérience, Paris: Seuil–Gallimard, 1996.

31 Stanley B. Lubman, Bird in a Cage. Legal Reform in China After Mao, Stanford: Stanford University Press, 1999.

32 Benjamin Carter Hett, Death in the Tiergarten: Murder and Criminal Justice in the Kaiser’s Berlin, Boston, Mass.: Harvard University Press, 2004.

33 See Chapter 1, the section on “Criminalizing the law.”

34 See my Grammars of Adjudication, Beirut: Institut Français du Proche–Orient, 2007, Chapter 11.

35 As far as Greater Syria was concerned; in independent Egypt, and other parts of the Empire, the modern courts may have come into existence decades earlier.

36 The tribal and clan‑oriented ʿashāyir never stood in the Baath lexicon as a class on their own, to be integrated within, and benefit from, the socialist policies of the state, in line with the other popular classes, beginning with the peasantry which did benefit from the agrarian reforms in 1963–65 via land redistribution of the big property conglomeration of the notable families of the Ottoman era. It is as if the social core of Syrian society, namely its ahl component, to which all class structure ultimately belongs, had to be obfuscated in favor of a more progressive leftist ideology as inherited from the communist Eastern Bloc under the Cold War.

37 Slavoj Žižek, “The Fear of Four Words: A Modest Plea for the Hegelian Reading of Christianity,” in The Monstrosity of Christ: Paradox or Dialectic?, Cambridge, Massachusetts: MIT Press, 2009, 24–109, p. 44 for the citation.

38 On the political significance of the slum neighborhoods in Damascus in the current civil war, see, Jihād al‑Zayn, al‑Nahār, Beirut, 5 January 2013. It is estimated that over 115 residential zones in Damascus, Ḥimṣ, and Aleppo are ʿashwāʾī, comprising 30–40 percent of the populations.

39 “Shared Social and Juridical Meanings as Observed in an Aleppo ‘Marginal’ Neighborhood,” in Myriam Ababsa, Baudouin Dupret, Eric Denis, eds., Public Housing and Urban Land Tenure in the Middle East, Cairo: American University of Cairo Press, 2012, 169–202.

40 “Droit et société,” in Baudouin Dupret and Zouhair Ghazzal, eds., La Syrie au présent, Paris: Actes Sud, 2007, 625–660.

41 Of particular significance is Sharāra’s study of “political crime,” Ayyām al‑qatl al‑ʿādī, Beirut: Dār al‑Nahār, 2007.

42 “Jāmiʿat al‑khawāʾ al‑Baʿthī,” in Mawt al‑abad al‑sūrī. Shahādāt jīl al‑ṣamt wa‑l‑thawra [The Death of Syria’s Eternity. Testimonies of the Silence and Revolution Generation], edited by Muhammad Abi Samra, Beirut: Riad El‑Rayyes Books, 2012, 23–60.

43 Michael Gilsenan, Lords of the Lebanese Marches: Violence and Narrative in an Arab Society, Berkeley–Los Angeles: University of California Press, 1996.

44 La Syrie au présent: reflets d’une société, Paris: Actes Sud, 2007.

45 “The insane shepherd‑who‑writes: Is he competent to stand trial?” in Baudouin Dupret, ed., Narratives of Truth in Islamic Law, London: I.B. Tauris, 2008, 199–240.

46 Baudouin Dupret, Le jugement en action, Geneva: Droz, 2006.

47 Antoine Garapon, Bien juger. Essai sur le rituel judiciaire, Paris: Éditions Odile Jacob, 1997.

48 “From Anger on Behalf of God to ‘Forbearance’ in Medieval Islamic Literature,” in Anger’s Past: The Social Uses of Anger in the Middle Ages, Barbara Rosenwein, ed. (Ithaca & London: Cornell University Press, 1998), 203–30.

49 Lisa Wedeen, Ambiguities of Domination: Politics, Rhetoric, and Symbols in Contemporary Syria, Chicago: University of Chicago Press, 1999; Peripheral Visions: Publics, Power, and Performance in Yemen, Chicago: University of Chicago Press, 2008.

50 Review of Timur Kuran, “The Long Divergence: How Islamic Law Held Back the Middle East,” Journal of World History, 2012, 23, no. 2: 422–426.

51 L’économie politique de Damas au XIXe siècle. Structures traditionnelles et capitalisme, Damascus: Institut Français de Damas, 1993.

Table des illustrations

Titre Figure 1: Jināyāt criminal dossiers at the warehouse of the Idlib Palace of Justice in summer 2007. The files would survive for 20–25 years on average, the legally required period of conservation after the final verdict and appeals, after which they would be dispensed with for recycling.
URL http://books.openedition.org/ifpo/docannexe/image/9415/img-1.jpg
Fichier image/jpeg, 687k
Titre Figure 2: Paperwork at the Aleppo Jināyāt in the mid‑1990s.
URL http://books.openedition.org/ifpo/docannexe/image/9415/img-2.jpg
Fichier image/jpeg, 460k

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