The ideal of punishment: crimes and criminal procedures in contemporary Syria
The big divide which for a long time has been canonized between
legal systems is one that is primarily related to their degree
of rationality. Either systems are formally rational, or else
they are irrational, and with subtle sub-categories in each. Systems
that are rational tend to have logically constructed systematic
codes whose ratio legis is grounded solely in the dynamics
of law itself. Interference from other spheres of the life-world,
such as the religious, political, and supernatural, tend to be
minimal, if not absent. Moreover, the history of those systems
tends to favor their congruence with modern laissez-faire capitalism,
which, in turn, assumes an ideology of individual freedom and
personal achievements. The special privileges between law and
economics are therefore taken for granted as beneficial to the
enterprise of law itself, which in turn should not stand in the
way of the achievements and benefits that laissez-faire liberalism
has thus far accomplished. However, such a congruence between
two spheres --the legal and economic-- is generally not overtly
acknowledged for other domains, so that political pressures on
the judicial decision-making process are usually perceived in
negative terms, as if betraying the spirit of the law altogether.
Moreover, remnants of the past, such as the jury system and the
privileged status of the Constitution in American common law,
are either portrayed by their supporters as positive vestiges
of the past which help build the coherence of the system and its
acceptance by the community, or else they represent for their
pundits its most irrational aspects, all of which need to be put
behind. In that category of formally rational systems stand Anglo-American
common law and all the systems of western Europe, which despite
major differences in legal reasoning --in particular when it comes
to the peculiarities of civil law in minimizing the role of judges
and the coherence of the codes-- fit nicely together as far as
At the other end, are all kinds of systems that are not perceived as rational, such as the Islamicate, the Indian, Chinese, and the Asiatic in general. Those are typically construed in terms of difficulties inherent in constructing a rational system of adjudication and decision making, one that does not rely upon sacerdotal modes of reasoning whenever it comes to making decisions, legislating, legal reasoning, and adjudication. Yet, despite some recent research on the irrationality of the rational in contemporary American criminal procedures, the distinction outlined above still holds as far as comparative law goes.
However, when it comes to crimes and homicides, the lines are blurred due to constant complains in North America and Europe on what is perceived either as a politicization or socialization of crime, or at best a lack of professional criteria that would establish the "right" punishment. Thus, for example, the death penalty in the United States, and the high number of inmates, not to mention the criminilization of drug felonies and the failure of the rehabilitation system, have all led to question the meaning of "rationality" in criminal procedures. Some have criticized a combined process of politicization and socialization of the system, at the expense of its juridification (Feeley, 1979, 1992; Feeley & Rubin, 1999; Stith & Cabranes, 1998). Moreover, many legal scholars in North America have questioned the overall objectivity that the system claims it is founded upon, hence leading to a reassessment in terms of dominant political ideologies (Kennedy, 1997).
The problem becomes even more pronounced once we move into systems, such as the contemporary Arab and Islamic, which for the most part have fallen behind in terms of fully rational procedures. To be sure, in such systems even civil procedures are at stake, considering that the economies under which they operate are still heavily under state control, thus undermining their efficiency. Such heavily bureaucratic societies, where the state acts as a big machine that controls production and the circulation of commodities, the freedom of contract and property, on the one hand, and the autonomy of the judiciary, on the other, would find themselves in a gray area from which it would be difficult to freely evolve, thus undermining even further the credibility of the judiciary altogether, which is often perceived as an apparatus that favors the dominant strata of the population and those connected to the apparatus of the state. Such a politicization of the judiciary, however, should not be necessarily looked upon within the same light as the critiques to which the North American and European systems have been subject to recently. In fact, it is one thing to decry the irrationality of a system with a long tradition of laissez-faire capitalism, and another where all aspects of societal relations are under the agency of the state and still operating under the burden of centuries of pre-capitalist relations and religiously oriented laws and normative rules.
I have been working on the contemporary Syrian legal system, in both its civil and criminal branches, since 1993. That project has been conducted in conjunction with an earlier research on judicial decision making in the Ottoman courts of Beirut and Damascus ("The grammars of adjudication"), and which is now under consideration for publication. Since I began to regularly attend court sessions and interview judges and employees, I kept receiving complaints regarding the overload of cases, justice miscarriages, and, above all, a heavy interference from the Other, meaning the state and its affiliates, such as the police and intelligence units. The other overriding concern, however, is related to long-standing customs such as the desire to retaliate for a victim belonging to one's kin, not to mention various practices related to honor-crimes and the like. They all point to a judiciary overburdened by societal concerns, so that the juridification of the process is a long-term ideal whose achievement is linked to a multitude of political and economic practices.
The Syrian judiciary is an outcome of the old Islamicate systems of justice, and in particular the Ottoman, to which I had recently devoted a book. To be sure, the Ottoman heritage is essential in understanding the nature of procedural practices in contemporary Middle Eastern systems. In fact, and in spite of the two broad reform movements inaugurated by the mid-nineteenth century with the full implementation of diverse Napoleonic codes (in their Turkish equivalent), much of the practices since that time are still haunted by the old system.
Since the advent of the Ottoman dynasty by the fifteenth century, and its becoming a major force in the Mediterranean after the fall of Constantinople in 1453, the newly emerging Ottoman state had adopted Hanafism, one of the four schools in Sunni Islam, as the foundational doctrine of its legal system. Like all schools that matured in early medieval times, the judiciary was drawn into a nexus of opinions based on the so-called founders of the school, and which acted as totemic figures to the propagation of ideas and doctrines. Judicial decision making was therefore an enterprise dominated by the power of Hanafism as doctrine, on the one hand, and the practices of the religious shari'a courts, on the other. It was through Hanafism as doctrine and the practices of the judiciary, not to mention the legislation that originated from the imperial center, that the Ottoman decision-making system was made and unmade, a process that eventually ended by the nineteenth century in favor of newly implemented Napoleonic codes and procedures whose primary purpose was the full centralization of the judiciary.
Yet, despite such radical changes, the old system did not altogether vanish. It remains with us until this day. Having worked on the Ottoman judiciary for a long time, I feel reluctant to declare the bankruptcy of the system, and prefer to conceive the present in terms of a newly codified system (the Ottoman judiciary worked its way through "opinions"), which even though based for the most part on European equivalents --in both civil and criminal procedures-- has been nonetheless adapted by local legists and legislators to "fit" within their own societal norms. In their present state, those codes look as if composed of an amalgam of notions with different perspectives and varieties of procedural concerns.
My research focuses on judicial decision making in the contemporary Syrian criminal courts, and would like to address the notion of rationalization in both its anthropological perspective --through a fieldwork in the courts-- and historically within my own findings on the Ottoman judiciary. The research aims specifically at the practicalities of the process: how alleged criminals are arrested, interrogated, incarcerated, and brought to court; how much help do they receive from private and state attorneys; what kind of memos are drafted on their behalf by police officers, lawyers and judges, and the courthouse staff (and seldom how a case is manufactured by the state official newspapers). From such micro-level preliminary observations the next step would be to tackle the court hearings and the way criminal cases are constructed and alleged culprits are brought to justice. It would then be possible to address more global and abstract concerns: What is considered a "crime" in contemporary Syrian society? Or, alternatively, what is a criminal behavior, and what are the societal representations that give priority to punishment, incarceration, and rehabilitation? Do such notions of a fair and just judiciary have any significance? Or, does the system behave within any notion of an "ideal" (e.g. an ideal for punishment)?
Central to my analysis in all my projects on the judiciary is the notion of "discourse analysis." By "discourse" is meant a linguistic construction of a general nature that enables society to make itself meaningful to itself. Considering that words and statements are the building blocks of texts, it is indeed the deep analysis of individual texts, and their juxtaposition with other texts, which leads to the discovery of broader discursive formations. In this enterprise of intertextual analysis of knowledge production, texts of different epistemological backgrounds, which might have been produced by rigidly compartmentalized disciplines and professional fields or institutions, are questioned irrespective of whether they represent "fact" or "fiction," "theory" or "practice," "subjective" or "objective" criteria, "science" or "imagination," etc. Moreover, the whole issue of the "author" and the "author's intention" does not add much to discursive analysis: the way the reader "actualizes" a text proves to be a more fruitful approach. Indeed, the purpose is to reconstruct what all those texts intend to say on a specific issue --e.g. crime and punishment-- irrespective of who drafted them, and to understand how practices have emerged out of such constructions.
Civil procedures, homicide and criminal cases in Syrian courthouses will serve as my main archival material. Any modern civil or penal case is constructed on the basis of texts of a widely different nature: medical, psychiatric, legal, autobiographical, etc., in addition to the police and lawyers' reports and memos, judges' rulings, newspaper comments, and the like. Thus, each file is based on, say, a notion of crime and punishment that in turn is constructed on a variety of epistemologically unrelated texts (the scientific epistemology of, say, a medical report is obviously different from that of a judge's ruling). Discourse, however, is what relates them together into a meaningful whole, and what gives them syntax, purpose, and meaning. After a preliminary study of over a dozen homicide cases, I realized that each case is constructed as if punishment is already implied in the crime itself and decided beforehand by the social actors themselves (the "disputants") and their "kin" --hence the notion of crime as punishment: this is particularly true of "honor"-crimes where the culprit's motives and actions already determine beforehand what the punishment ought to be. In other words, a micro-analysis of, say, honor-crimes, which are usually looked upon as "private" matters, points in reality to much broader disturbances within society, which the legal is neither able to absorb nor fully control. This raises questions as to how much the judiciary is capable of sustaining civil peace at home, and the implications of such failures and/or successes for neighboring societies.
Crimes and procedures
As in many civil-code societies, and in contrast to the adversarial Anglo-American system, Syria has adopted the inquisitorial method of investigating a crime, which implies that the state institutions --primarily the police-- are responsible for conducting the necessary investigations and preparing a strong case for the courts to pursue. The qadi al-ihala (juge d'instruction, examining magistrate) is in charge of the criminal investigation and is responsible for filing a report on its progress. Once a preliminary investigation has been completed, the ihala judge drafts his or her final report and transmits it to the Jinayat (homicide) court that now becomes responsible for the case. The ihala report usually gives the first comprehensive description of the crime scene, motives, the accused, and other suspects. Subsequent court rulings, including the final one, rely heavily on that report and borrow a great deal from its content and language.
Three judges preside each session wearing the traditional robe du magistrat and sit on an elevated area known as the Qaws (the "Arch" [(of justice]). (There is also a representative for the public prosecution, al-niyaba al-'amma, who shares the Qaws-bench with the three other judges and the scribe.) Lawyers and their assistants sit behind a long desk facing the three judges. Unlike the Anglo-American systems, and also, surprisingly, unlike the French, there are no juries (hence no agonizing jury selection process) for both penal and civil cases, and only judges, rather than lawyers, do the direct and cross examinations. Lawyers can only "suggest" questions, and complain to the judges; they are, however, denied direct access to the defendants, plaintiffs, and witnesses. There are no full transcripts of the court-sessions, but only paraphrased summaries of all the utterances as publicly dictated by the chief-judge to his or her scribe (the handwritten "transcripts" are not only hard to read but their "reading" leads to many errors in the process of transferring information between the courts and lawyers, and also between courts). Thus the chief-judge has an enormous work to perform at every moment of the hearings: a mastery of the complete file, the direct and cross examinations, paraphrasing "summaries" of the various utterances, listening to the lawyers' objections, etc. A micro-analysis reveals the procedures of the system, and how the incongruence between the modern codes and customary norms manifests itself in the language of the courts. Thus, the difficulties that the system encounters in sustaining civil peace are visible even in the most banal court sessions and hearings, which, in turn, based on available transcripts and files, should be subjected to a careful discourse analysis.
From a methodological point of view, it needs to be made clear that the study of, say, a homicide case-file is a different enterprise from the study of crime as such. In fact, while the latter assumes extensive anthropological and sociological research that would open each case to its social dimension (such as interviewing all those involved in the case, from the disputants themselves and their families, to the lawyers, judges, police, etc.), the former approach limits itself to the discursive construction of each case. In other words, it is the file as such that makes possible the existence of and constructs a particular homicide case. The social scientist who is doing his or her best to interpret a case --and considering that a text only reveals itself through interpretation-- has at his or her disposal the same material out of which the chief-judge had conducted the hearings (or the higher Court of Cassation for that matter) --no more, no less. In other words, my interest is limited to what judges knew while drafting their final rulings. To include material that was excluded from the case (newspaper clips, statistical figures, interviews with the accused and their families, etc.) might create a serious handicap in understanding the textual strategies of a specific case. In short, cases must be limited to their textual (and, at times, photographic --but that would also fall within the textual domain) material contained in each file. Indeed, I am less interested in what a case excludes (and hence to proceed with my own investigation and include additional material --even though that might turn out beneficial for other purposes), and more with what it already includes and how that linguistic (or photographic) material comes together within its discursive textuality. The discursive construction of individual cases on a one-by-one basis enables the examination of the Syrian legal system in terms of its failures and/or successes in sustaining a civil peace by providing a level of coherence to the codes, procedures, and decision-making processes. The more a system fails to meet the expectations of its social actors, the more the likelihood that the latter will be seeking justice "by other means."
Plans for completion
I have already worked on hundreds of criminal cases mainly in the city of Aleppo (north of Syria) since June 1993, and began recently to look at civil cases and procedures, in addition to interviewing judges, lawyers, disputants, and the employees of the Palace of Justice where all the civil and penal courts are located. Many more cases need to be examined prior to the completion of the project even though the final manuscript should not include more than a dozen carefully analyzed civil and penal files. To do more would imply a focus on numbers, statistics, and purely factual matters, hence a betrayal of the textual method outlined above. I am planning for a long stay in Syria (in 2003) with a primary focus on Aleppo to study more cases, and an additional year is needed to complete my manuscript. The project is part of a more global study that should include a comparative analysis of the legal systems of Syria, Lebanon, the Palestinian territories and Israel.
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