The insane shepherd-who-writes

 

 

Aleppo, November 2004

 

 

 

Like all stories this one has many twists and turns—and the “same” events could be recounted from the vintage point of views of different actors. Let us therefore begin with the official version and see what the Idlib Jinayat (the criminal court in the city of Idlib, north of Syria) had to say when it elicited its final ruling six years after the crime.[1]

 

We are told that the killings that occurred on 12 March 1994 in one of the villages in the vicinity of Idlib were an outcome of a land conflict. Simply put, a land that was left over (matruk) near the village school was simultaneously claimed by several shepherds. The accused 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 the accused was at home, which happened to be near the disputed land. When the shepherds came as usual with their sheep to the disputed land, the accused warned them not to approach his home and “his” land. A quarrel followed. The accused went home and picked up his Russian rifle, then went back to the land, and when his foe Ibrahim saw him rushing in their direction, he in vain attempted to contain him, but the accused shot and killed him on the spot. He then shot to death Ibrahim’s son Muhammad and his daughter Shamsa, but missed Ibrahim’s other son ‘Akal because there were no ammunitions left. The accused 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.

 

On 26 April 2000 the Idlib Jinayat court sentenced Hilal for life imprisonment, but reduced the penalty, for what it called “the reduced considered causes (al-asbab al-mukhaffafa al-taqdiriyya),”  to 20 years with hard labor. In its final ruling the court quoted statements from dozens of witnesses from both sides, some of which allegedly witnessed the crime from neighboring lands and homes. It also quoted the defendant’s first deposition to the police: “The victims Ibrahim and his three sons had left their sheep grazing over my crops. When we were arguing, Muhammad held me and his brother ‘Akal hit me with a hammer on the face. I fell on the ground. 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 attempted to take the rifle from my hand I shot him too, then I shot the other son…”

 

But what makes the case different from all others is neither the verdict itself nor the witnesses’ depositions. At some point the defendant Hilal begun sending 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 are 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 had 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.[2]

 

In 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.

 

Dear master and lawyer,[3]

 

From your client Hilal a summary of how the incident took place. The day of the incident I was alone in my land working and cultivating. The land is roughly 100 meters away from my house. Four hooded shepherds came by with their sheep, and they’ve left them graze on my land. I’ve asked them to move their sheep out. They’ve refused and said that we’ve already warned you to leave this place a long time ago. At this point I was able to identify them: Ibrahim Hasan Muhammad and his two sons and their maternal cousin. I told them that when I finish plowing and the season is over I’ll sell you whatever you need. They replied that we won’t pay you a single piaster, and you’ll 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’ll slaughter Hilal because he’s the son of a dog, and he owns all the village.’ At this point Muhammad came towards me and hit me with a stick. Then it was his brother’s turn to hit me with a hammer several times. As I fell on the ground 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 started hitting her, she fell on the floor, and 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 Anwar[4] with a Russian rifle. I took it from him 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’ll 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, and said: ‘We’ll 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 (bidun wa‘i), since I couldn’t run away. While they were attempting to take the rifle from me Ibrahim got shot and fell on the ground. When his son Muhammad rushed towards me the second shot was fired, which hit him directly.[5] I have no knowledge how the girl got shot.[6] I run 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-Nawwaf was able to follow us, and with him was the rifle, which he managed to take [from my adversaries.] He said to me ‘don’t take your wife with you to the police station, and don’t say that she was with you, because they’ll arrest her.’ I’ve 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 then 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. And then I stopped hearing from him. A judge came and took my deposition. I wasn’t 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.

 

We now come to the public witnesses (shuhud al-haqq al-‘amm).[7] Muhammad Shaykh Muhammad, his son Walid, ‘Umar Shaykh Muhammad and his son ‘Aziz,[8] 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 shar‘ and law (qanun), because there’s between us previous litigations (khusuma) 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, and they’ve got what they wanted…

 

Whether the above letter was the first in the series or not is hard to determine. Its significance comes from the fact that it’s the most complete when it comes at describing the incident itself, its aftermath and possible causes. More importantly, it sheds some light as to links with previous episodes regarding 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 claimed that his opponents were beating him, and one of them was holding him from the back, when he started shooting, 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 letter brings two elements that were avoided in the Jinayat’s final ruling: the longstanding feud between the two families; and the interest that the other party might have nurtured towards the defendant’s properties.
  3. Perhaps the most important element was regarding the status of witnesses. While the defendant clearly identified the witnesses’ kin affiliations and motivations, the Jinayat failed to do so. Which raises an interesting question: considering that in such worlds, plaintiffs, defendants, and their witnesses, are in all likelihood kin connected, 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 accusing in that same letter, “that the locations of the bodies had been altered either by the police or the doctor.”

 

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

 

Within a month after my arrest, ‘Akal al-Muhammad[9] went and met with Nuri al-Nawwaf, and asked him to intervene in the peaceful settlement (sulh) and 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 ‘Umar Shaykh Muhammad and Muhammad Shaykh Muhammad had objected to the proposal and threatened ‘Akal for attempting a peaceful settlement. They’ve made an agreement with one another to usurp (ightisab) my homes and land,[10] and appointed themselves as public witnesses in the case. They’ve thrown my family out of their homes and land to a free zone (mantaqa muharrara).[11] My brothers had met God’s will and their children have now joined my family, which has grown to 33 souls (nafas), all of them homeless and with no place to stay. Our land has been robbed from us by ‘Akal al-Muhammad and his maternal uncles ‘Umar al-Shaykh and Muhammad al-Shaykh. My generous master if you can bail me out (ikhla’ sabil) I’ll take it upon myself (ata‘ahhad ‘ala nafsi) that within a month there will be a peaceful settlement and I’ll bring together my homeless family.

 

In 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’m working on one more than ever before. I ask you to prolong the verdict for some time.

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

The inmate Hilal.

 

Since the note, like all others, was left undated, it’s impossible to know how close to the final ruling it was. 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 distributed according to sharia law, while the plaintiff ‘Akal Ibrahim al-Muhammad (the only survivor) would receive SP50,000 ($1,000), and 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 compensations 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 settlement, then such mediations must have surely failed, and the Idlib court proceeded with its own harsh settlement. Because the Jinayat generally compensate far less than the expectations of the plaintiffs, the disputants tend to settle on their own and then drop their personal rights over the case, leaving the Jinayat 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 their verdicts must be in conformity 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.

 

This study is centered on the notion of the use of rules by social actors. Rather than simply focus on the rules of law, their internal logic and coherence (or lack thereof), we have deliberately shifted our analysis to 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 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’ll 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 action 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 on their side. But, in so doing, they’re planning for symbolic and material compensations, hence they’re looking at their economic status once it’s all over and they’re back to normal life. Our case here clearly reveals the economic interests of all protagonists. What the defendant Hilal was attempting in his letters and notes to his defense counsel was a representation of the crime in his own language.

 

Consider the following undated memo in which Hilal listed what he considered as “evidence”:

 

“My master, below is some evidence (adilla) and I have witnesses to support them.”

 

Hilal statements (numbering is his own)

observations

A. 1. The immediate deposition (dabt fawri) [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-‘Abid—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 Naqd Damascus courts have constantly emphasized, such depositions have no value unless suspects reiterate their statements during the court hearings. But in practice such depositions have a value beyond proportions as the courts heavily rely on them even if suspects eventually deny every word they said.  

2. When the deposition was being recorded, I wasn’t fully conscious at all. The police brought me a doctor who gave me medicaments, but my statements were nevertheless recorded, without having gained my consciousness.

The deposition is further delegitimized on the basis that he was not fully aware of what he was saying. Even though a simple denial in the presence of a prosecution judge would have been enough—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 waiting for a punishment which could be severe. He was therefore left with two options: (i) a peaceful settlement based on blood money compensation; and (ii) throw doubts on his opponents with the hope that the court would alleviate the punishment.

3. I’ve tried a lot to have my statements heard by an investigative judge, as I placed several demands, to no avail, and the only statements I made 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 (see below). As we’ve seen in earlier cases, suspects tend to seize the opportunity of their encounter with an investigative 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 Jinayat did not even raise in its final ruling.

B. The public witnesses in the case are in toto my adversaries (khasm) because my father killed their father, and despite 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 (shawahid) on their assaults, etc.

Hilal was here attempting to contextualize the crime in light of a previous killing, or what might be termed chain-killings. But there’s also an indirect contextualization regarding the motivations of his three victims and their witnesses—that all of them acted or were acting in retaliation to 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 were suspicious because they were kin related to the victims and like the victims were retaliating for a previous killing. Now the whole episode looks more “understandable”: victims and witnesses were tied together in a single act—retaliation. Interestingly, the Jinayat excluded all this material in its final 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 Jinayat (and all other judicial instances). Whenever the Jinayat excludes contextualization attempts by either party, it is de facto favoring the disjunctive elements in the case.

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 crops with a pretext—the village wall—and it is known that the wall is no good for the sheep to graze, and the intention (ghaya) 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 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, distributed 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 Jinayat 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 (aqarib) 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 enough 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 cross-examination by an assistant judge the day after the murder, Hilal stated that that he purchased the rifle from 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’ve seen the distance [that separates] 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 Jinayat 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 (‘ashira), and he might have heard the talk of those present after we had run away.

After having discredited all witnesses, now it’s 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 (akhsam) and 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’re the ones who have damaged houses 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. (There are no indications as to whether the alleged crimes against Hilal’s family were factually correct, or whether they had been properly investigated.)

 

The witnesses’ alleged kin bias was picked up by the defense counsel in one of his memos to the Jinayat on August 1995: “Your honorable court, being a court of substance (mahkamat mawdu‘), will notice that it is not permitted to judge by the law and deduct from evidence while bypassing the witnessing of neutral persons (ashkhas hiyadiyyun), and 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 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 the three victims. The counsel went 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 (ta‘arrud)” under a certain condition, and the assault (i‘tida’) 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 ta‘arrud 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?

 

Social actors index their speech in such a way that each utterance ought to be “understood” by the hearer within its proper social meaning. That’s 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, and which social research relies upon to understand the behavior of individuals within their proper institutional contexts. From the vintage 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, within a specific institutional context, 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, gender, ethnic and linguistic divisions in society which are not directly 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.

 

To illustrate my point more concretely, I would like to address the issue of “insanity” of the accused, which his defense council brought to the attention of the court since his first plea to the Jinayat 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, among others (genetic or mental disorder, etc.), 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.

 

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

 

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

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

Q: 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 Shamsa? And if you did not shoot her, then who did it?

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

Q: We’ve 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?

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

 

For 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 on self-defense, or as his lawyer pointed out, because of the ta‘arrud 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 cross-examination is Hilal’s depiction of Shamsa as he was running 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 indeed 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 cross-examination would not have carried the same weight had it not been over a woman’s body.

 

In similar vein, the issue of Hilal’s “insanity,” first brought up by his lawyer, carries similar taken-for-granted assumptions. In his first memo addressed to the Jinayat, 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 (tajnid), when he was summoned to serve his compulsory military service, but was soon released (u‘fiya) 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 (naqs ‘aqli) to the point of idiocy (bi-darajat al-balaha) 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.

 

In light of Hilal’s previous problems at the military, his attorney requested from the Jinayat that his client be subjected to a medical examination, a request that received the Jinayat’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 counsel rebuffed the medical committee’s claim that his client’s “actions were sound (tasarrufat salima)”: the medical committee reached its conclusion after realizing that “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 the 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-mulkiyyat al-‘aqliyya) for any person in an hour or in a question. The accused suffers in effect from a brain deficiency (naqs ‘aqli) to the point of idiocy (li-darajat al-balaha),[12] and if someone is an idiot (ablah) it doesn’t mean that he would be unable to utter single true or sound word, which prompts 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 (salamat malikatuhu al-‘aqliyya), and check whether he does not suffer from any mental or psychological illness (marad ‘aqli aw-nafsi). For that reason we request that the accused be placed under the supervision of a five-member medical committee, comprised of specialized doctors ready to take hold of their responsibilities, which would place him in a state-owned hospital for psychic illnesses (amrad nafsiyya) for an acceptable period of time, and then in light of that draft a report.”

 

The counsel’s plea for a second medical examination did not seem to have had much effect on the defendant’s status (the five-member medical report was not included in the file I consulted), and the whole issue of the defendant’s “mental deficiency” was only brought to light once more in the Jinayat’s final ruling in 2000: “The defense has pleaded that his client was not responsible for his actions since he has a mental illness (marad ‘aqli), based on the fact that the accused Hilal was dismissed from his compulsory military service [in 1965] for his idiocy (balahat-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 (marad ‘aqli), making him responsible of his actions from the day of the crime until now. His mental powers are normal…” The court, which described the dispute as “simple (basit),” then 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

 

“The accused rejects the committee’s competence,” wrote the defense counsel 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’m requesting that the committee’s findings be revised,” was what the lawyer had in mind. Otherwise, the accused, 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’s clearly visible in the Hilal 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, balaha—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 Jinayat court adhered by the three- and five-member medical committees, both of which found that Hilal did not suffer from any “mental illness.”

 

What characterizes such common-sense descriptions, besides their use of a set of confusing terms that poorly describe Hilal’s condition, is that there’s nothing in them that is either medical or legal. 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 Schutz’s phenomenological feature of what is “known in common,” Garfinkel concludes that “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.”[13] Regarding 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 what 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.

 

Bona 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 a 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.”[14]

 

Which brings us to the core issue of the autonomy of a legal system. Should we expect a system to shy away from the common-sense descriptions and create its own descriptive language—that is, assume a degree of autonomy at all levels: the theoretical, practical, and ethical? In themselves, the rules of law stand as autonomous, since they belong to a consistent language of their own making. That’s the level of juridical dogma—that of judges and lawyers. But we’ve deliberately placed our approach at the other end of the spectrum: how social actors use the rules of law, and how in such a process “law is made” through the various narratives of the users, while at the same time the written rules remain the same. One can imagine, of course, that on the long run that, as an outcome of daily practices, some of these rules will eventually change. The rules of law are therefore at the same time autonomous entities on their own right, which like the languages of mathematics, are meaningless to the profane layman, and “made” through the praxis of the latter. The juridical meets the social at the courtroom, as the trial is the point of entry to the system.

 

 

 

copyright © 2004 zouhair ghazzal

zouhairghazzal.com

 



[1] Idlib Jinayat 271/1194; final ruling 11/2000.

[2] Since the lawyer’s heirs authorized me access to the folder’s case (the lawyer in question died in 2001, a year after the verdict), the original letters were included in the file. It remains uncertain, however, whether the defense forwarded them to the prosecution and were later included in the Jinayat’s file. In a number of cases, I’ve seen letters of inmates originally addressed to either the prosecution or defense, or to the Jinayat court itself, 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’s up to the former to decide what to include or exclude from their presentation of the case.

[3] As the letters and memos were all drafted without any punctuation, all the latter is exclusively mine, and so are bold and italic characters. The purpose of the latter is to focus on certain words, and then look at them in relation to one another. Since all documents are translated from Arabic, a great deal is lost in the English translation, which I hope can be compensated by incessantly reminding the reader what is at stake here.

[4] Anwar was a minor at the time.

[5] Notice how the narrator Hilal 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.

[6] Both the police and the Jinayat 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?

[7] Literally, the witnesses of public right, or those that were summoned by the prosecution.

[8] All of which were from the victims’ and plaintiffs’ family.

[9] The third son and only survivor of Ibrahim al-Muhammad who was also present at the crime scene when his father and two brothers were shot to death.

[10] 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.

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

[12] The expression originally occurred in the 1965 military medical report, quoted above.

[13] 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.

[14] Peter L. Berger and Thomas Luckmann, The Social Construction of Reality (The Penguin Press, 1967).