Loyola University Chicago
Department of History
proposal for a Fulbright lecturing research grant in Syria
fall 2003-spring 2004
The ideal of punishment: The Syrian judiciary and its procedures
I. Summary of the project
In parallel to a project I have been working on for the last ten years on the Ottoman-Turkish religious courts of Beirut and Damascus in the nineteenth century—“the grammars of adjudication”—and which I have just completed and forwarded to reviewers for evaluation this past summer, I have also been working on a parallel project on the contemporary Syrian judiciary and its procedures. I have been able to accumulate original sources on Syria’s civil and penal courts. As the project has gradually grown into a two-volume book, I am now planning to complete the first volume on penal law—“the ideal of punishment”—and present it for publication. For that purpose, I am requesting from the Fulbright Scholar Program a grant for two semesters (Fall 2003 & Spring 2004) to be able to complete my documentation of the courts of the city of Aleppo, and begin a first draft of the manuscript, which will be then completed by the summer of 2004.
Every society shares its own representations of crime in general and criminal behavior in particular, and thus creates what the French sociologist Émile Durkheim has labeled as “the collective consciousness” (la conscience collective) of a particular society. Thus, every society in history has to construct for itself representations of crime and criminal behavior as such, beginning with the most trivial questions: What is a crime, and what is it that constitutes a criminal behavior? Why do crimes occur? Is it possible to understand a criminal behavior causally? Should it be diagnosed in terms of the “intentions” of the alleged criminal, or should we only look at the “consequences” of the act? How should a criminal be punished? And can a criminal become a better person and reintegrate within society after a certain period of incarceration and rehabilitation? Such questions are crucial because they determine for every society what I would like to define as an “ideal” of punishment, meaning a set of normative values around which the representations of crime, criminality, and the criminal as person and social animal are construed, and around which society operates to punish, incarcerate, and “protect” itself through penal codes, courts, the police and the judiciary. One can also add, in this respect, the association of the penal with the medical, mainly in terms of a “medicalization” of criminal behavior, and the belief, which evolved in nineteenth-century Europe, that criminals could be medically diagnosed and treated as such. Hence the benefits of incarceration and of all kinds of rehabilitative practices which are thought, in some instances, to follow scientific rationality.
In this respect, contemporary Syrian society shares its own representations of crime and the criminal, and which for the most part have evolved from a much older Islamic and Ottoman penal systems that lasted until the First World War. It is therefore my intention to reconstruct such representations for the Syrian judiciary and its procedures.
II. Background and significance
As I indicate in the last section to my proposal (Bibliography, Section VI), there has been little research on penal law in contemporary Syria. Moreover, studies on the Syrian legal system in general (including its civil part) are also crucially lacking, so that it is impossible to relate my own research to anything similar in the field of Arab, Islamic, and legal studies. In fact, legal history in the Arab world has lagged behind the advances that were accomplished in other domains such as the social, economic and political history of Islamicate societies. The reason is that Ottoman legal history, which should have provided the foundations for a contemporary history of the legal reforms that have swept the Arab and Islamic world throughout the twentieth century, has not progressed much in the last few decades. Consequentially, the development of legal history in the modern Middle East is much weaker than its counterparts in Europe and North America, and the reason is probably that most researchers feel unsafe embarking on the study of modern law without, however, prior knowledge of the histories of the various Islamic legal schools.
One could, of course, relate such a project to the field of Islamic law in general. However, such an enterprise proves hazardous for two main reasons. First, what is commonly referred to as “Islamic law” is a misleading name that hides all the multiplicities of juridical and judicial practices in their historical and regional variations. Second, studies on penal law in the early and high medieval periods tend to be limited to general abstractions on “punishment” in Islam, without, however, any attempt to historicize penal law in terms of its various judicial practices and regional variations. One is therefore left with a broad picture that hardly contributes in illuminating the evolution of penal law at a specific historical juncture and within specific societies (for example, the Fertile Crescent and Greater Syria).
Finally, it is, of course, recommendable that the vast literature on the legal histories of European and North American societies be consulted both for its methodological value and for comparative purposes as well. Thus, American common law in particular would prove useful in its questioning many of the court practices since the 1960s, specifically regarding the various attempts to homogenize the latter by means of bureaucratic reforms with the explicit purpose of reducing what is commonly perceived as an “abusive power of judges.” That led, according to some legal historians, to a reevaluation of the “rehabilitative” model by downplaying its importance, and by gradually replacing it with more “rational” evaluative schemes of criminal behavior within the inmate population, thus, again, with the attempt to reduce what is perceived as the unfair “subjectivity” of judges in any decision-making process. In effect, recent research on the evolution of crime under the common law would serve for comparative purposes with societies whose questioning and self-reflection upon its own penitentiary institutions has not reached that level yet.
III. Personal qualifications and relevance
My previous project, The Grammars of Adjudication: The economics of judicial decision making in fin-de-siècle Ottoman Beirut and Damascus, took ten years to complete and I’ve worked on it in conjunction with my current project on crime. The manuscript has been recently submitted for review.
In The Grammars of Adjudication I have examined how a very heterogeneous textual material, ranging from doctrinal legal texts, court documents, imperial edicts, and responsa issued by local jurisconsults, is construed in terms of its inner logic and the relationship it maintains—or fails to maintain—within its historical and regional milieu—that of Ottoman Greater Syria. What the manuscript adds to the already existing scholarship of the Ottoman Empire and Greater Syria is a close examination of legal texts, which in the majority of cases are either left out by scholars, or else are only presented to the reader in a summary-like fashion, without an inner look at their consistencies or inconsistencies. In fact, my book has a much broader scope than the study of specific legal texts for a particular society since it aims at looking, more broadly, at the integration of texts within historical discourse and narrative. Historians are among the first in the humanities and the social sciences to stress the importance of the written document as a prerequisite for any possible historical undertaking: without the archival support, history cannot possibly exist as an autonomous science. Yet, the presentation of the textual material within the historical narrative is often limited to its “evidentiary” role, which, in some respects, parallels the role of the “document” in court procedures—that of pure and formal “evidence”—thus bracketing off all the internal intricacies that a text normally manifests.
My current project on “The ideal of punishment” tackles the available documentation in a similar vein. Thus, besides the fact that The Grammars of Adjudication serves as a necessary historical background for an earlier period, and over which modern scholarship has remained limited, it provides the methodological foundations for the new project in terms of reading a heterogeneous textual material, and its organization within a single coherent narrative. Moreover, The Grammars contains a long chapter on crime in Ottoman Syria, which is essential for our understanding of the evolution of criminal procedures throughout the twentieth century, in particular after the Ottoman Empire had disintegrated with Turkish defeat in World War I, and when many of the judicial procedures had to be revised in conjunction with modern French law.
It has been my policy since I joined Loyola in 1992 to focus with my students in every course I taught on the reading of historical narratives as texts, and thus to examine the strategies deployed by their “authors” and the inner logic of those narratives. History is thus perceived not solely as a repository of factual evidence and of things that happened, but mainly in terms of textual components which are associated with particular constructions narrated by authors. Such constructions are usually contained within the space of a book and associated with a specific author. Students are therefore encouraged to look for the way a particular author-historian has constructed his or her narrative, and how several constructions for similar or related topoi compare with one another.
Finally, I should add that in the last couple of years I’ve been offering a legal course each semester, or at least once a year, and that at present I’m the only one in the Department of History to have reinvigorated the historical legal tradition. Thus, a special-topics course, “History of Legal Systems,” has already been offered twice, and a “History of American Law” was offered for honors students in Spring 2001. Besides my desire to offer more legal courses in the future, I’m also planning to propose to include them as part of the permanent departmental offerings. Those courses, besides their usefulness for pre-law students, also provide the department with new themes on the economic and legal history of societies and civilizations.
In the last ten years since I’ve joined Loyola, I’ve been regularly teaching two courses a semester. Those courses fall broadly in two parts: (1) those relating to the Middle East and Islam; and (2) those concerned with broad topics from the humanities, social sciences and law, and their area of concentration is mostly, though not exclusively, Europe and North America. I also did occasionally courses on Asia, the Pacific societies, and the Indian Ocean.
In case my Fulbright grant is approved for the Fall 2003 & Spring 2004, my preference would be for the University of Aleppo. From preliminary talks I had with higher members of the administration in June 2002, their preference was for one course/seminar per semester.
My own preferences would be as follows:
• Fall 2003: course/seminar on the modern Middle East. The course would explore aspects of the literature available in Europe and North America on contemporary Middle Eastern and Islamic societies. It would thus introduce the students to some of the texts that are not available yet in an Arabic translation and analyze them in terms of their respective methodologies and historical approaches. The advantages of such an approach are numerous, but the main aim is to avoid a broad passive style of lecturing and make the students aware of the status of the Anglo-American research on Islam and the Arab world in particular. It would also make them aware that books ought to be perceived not simply in terms of their factual content but primarily, if not predominantly, in terms of their methodology, structure, and the relationships that they establish between facts and events.
• Spring 2004: course/seminar on history and the social sciences. This course would follow the same principles as above but would concentrate solely on some of the most predominant research methods in the social sciences. Again, the aim would be to expose the students to research tools and methodologies that they might not be familiar with.
V. Anticipated outcomes
I have already worked on dozens of penal cases mainly in the city of Aleppo (north of Syria) since June 1993, and began recently to look—for the second volume of the current project—at civil cases and procedures, in addition to benefiting from the experiences of judges, lawyers, disputants, and the staff of the Palace of Justice where all the civil and penal courts are located. More cases need to be examined prior to the completion of the project even though the final manuscript should include no more than a dozen carefully analyzed penal cases (or civil cases for the second volume). To do more would imply more focus on numbers, statistics, and purely factual matters, hence a betrayal of the textual and discursive method outlined above. I am planning a winter stay in Syria (Fall 2003 & Spring 2004) with a primary focus on Aleppo to study more cases, and an additional year is needed to complete a first draft of my manuscript. The project is part of a more global study that should include a comparative analysis of modern legal systems in the contemporary Arab world.
My study of the Syrian legal system is based solely on unpublished civil and penal cases which I was able to consult and photocopy during my work in Syrian courthouses. Since files are neither properly stored nor indexed, my research would only concentrate on the last twenty years. Indeed, beyond that time framework, the availability of case files becomes sporadic at best. Strange as it might seem, studies covering the contemporary Syrian legal system are practically non-existent, hence the impossibility of compiling any meaningful bibliography—however limited—that would orient the reader specifically to legal studies on contemporary Syria. Section (a) below lists writings on Islamic law in general, while the short section (b) includes only few references that were particularly helpful in drafting this proposal.
a. Islamic law: past & present
Berque, Jacques. Essai sur la méthode juridique maghrébine. Rabat, 1944.
Calder, Norman. Studies in Early Muslim Jurisprudence. Oxford: Clarendon Press, 1993.
Chehata, Chafik. Droit musulman. Applications au Proche-Orient. Paris, 1971.
Chehata, Chafik. Théorie générale de l’obligation en droit musulman hanéfite. Paris: Éditions Sirey, 1969.
Cuno, Kenneth M. “Was the Land of Ottoman Syria Miri or Milk? An Examination of Juridical Differences within the Hanafi School.” Studia Islamica 1, no. 81 (1995): 121-152.
Dickinson, Eerik. “Ahmad b. al-Salt and His Biography of Abu Hanifa.” Journal of the American Oriental Society 116, no. 3 (1996): 406-417.
Ghazzal, Zouhair. “Lecture d’un waqf maronite du Mont Liban au XIXe siècle.” In Le waqf dans l’espace islamique: outil de pouvoir socio-politique, edited by Randi Deguilhem, 101-120. Damascus: Institut Français de Damas, 1995.
Habermas, Jürgen. Faktizität und Geltung: Beiträge zur Diskurstheorie des Rechts und des demokratischen Rechtsstaats. Frankfurt: Suhrkamp, 1992.
Hallaq, Wael B. Law and Legal Theory in Classical and Medieval Islam. Brookfield: Variorum, 1995.
Imber, Colin. Ebu’s-su‘ud: The Islamic Legal Tradition. Edinburgh: Edinburgh University Press, 1997.
Johansen, Baber. The Islamic Law on Land Tax and Rent. The Peasants’ Loss of Property Rights as Interpreted in the Hanafite Legal Literature of the Mamluk and Ottoman Periods, Exeter Arabic and Islamic Series. London: Croom Helm, 1988.
Libson, Gideon. “On the Development of Custom as a Source of Law in Islamic Law.” Islamic Law and Society 4, no. 2 (1997): 131-155.
Mallat, Chibli. The Renewal of Islamic Law. Cambridge: Cambridge University Press, 1993.
Masud, Muhammad Khalid, Brinkley Messick, and David Powers, ed. Islamic Legal Interpretation: Muftis and Their Fatwas, Harvard Studies in Islamic Law. Cambridge (Mass.): Harvard University Press, 1996.
Messick, Brinkley. The Calligraphic State. Textual Domination and History in a Muslim Society. Berkeley: University of California Press, 1993.
Modarressi, Hossein. An Introduction to Shi‘i Law. London, 1984.
Mostafa, Mahmoud M. Principes de droit pénal des pays arabes. Paris: Librairie générale de Droit et de Jurisprudence, 1973.
Rosen, Lawrence. The Anthropology of Justice. Law as Culture in Islamic Society. New York: Cambridge University Press, 1989.
Schacht, Joseph. An Introduction to Islamic Law. Oxford: Clarendon, 1964.
Schacht, Joseph. The Origins of Muhammadan Jurisprudence. Oxford: Clarendon Press, 1950.
Schneider, Irene. “Imprisonment in Pre-classical and Classical Islamic Law.” Islamic Law and Society 2, no. 2 (1995): 157-173.
Tyan, Émile. Histoire de l’organisation judiciaire en pays d’Islam. Leiden: E.J. Brill, 1960.
Tyan, Émile. Institutions du droit public musulman. 2 vols. Paris: Recueil Sirey, 1954.
Weiss, Bernard. The Search for God’s Law: Islamic Jurisprudence in the Writings of Sayf al-Din al-Amidi. Salt Lake City: University of Utah Press, 1992.
Wheeler, Brannon M. Applying the Canon in Islam: The Authorization and Maintenance of Interpretive Reasoning in Hanafi Scholarship. Albany: State University of New York Press, 1996.
Ziadeh, Farhat J. Lawyers. The Rule of Law and Liberalism in Modern Egypt. Stanford: Stanford University Press, 1968.
b. Methodology & project proposal
Feeley, Malcolm M. The Process Is the Punishment: Handling Cases in a Lower Criminal Court. New York: Russel Sage Foundation, 1979, 1992.
Feeley, Malcolm M., and Edward L. Rubin. Judicial Policy Making and the Modern State. New York: Cambridge University Press, 1999.
Foucault, Michel. “L’évolution de la notion d’«individu dangereux» dans la psychiatrie légale du xixe siècle.” In Dits et écrits, 1954-1988, III: 1976-1979, ed. Daniel Defert & François Ewald. 443-464. 3. Paris: Gallimard, 1994.
Garland, David. Punishment and Modern Society. Chicago: The University of Chicago Press, 1990.
Kennedy, Duncan. A Critique of Adjudication: fin de siècle. Cambridge: Harvard University Press, 1997.
Leps, Marie-Christine. Apprehending the Criminal: The Production of Deviance in Nineteenth-Century Discourse. Durham: Duke University Press, 1992.
MacCormick, D. Neil and Robert S. Summers, ed. Interpreting Statutes: A Comparative Study. Aldershot: Dartmouth, 1991.
Stith, Kate, and José A. Cabranes. Fear of Judging: Sentencing Guidelines in the Federal Courts. Chicago: The University of Chicago Press, 1998.