The insane shepherd-who-writes:

is he competent to stand trial?


in Baudouin Dupret, ed.,

What Happened? Telling stories about law in Muslim societies



Zouhair Ghazzal

Loyola University Chicago





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


One can see why the notion of norm has so much preoccupied legal theory.[4] By looking at law primarily in terms of the rules that it engenders—the rules of law (règles de droit)—legal theory thought that the latter are only exceptional and much narrower instances of broader normative values that coexist in society at large. The real rules are those existing in society while the legal rules are only a clichéd version of the latter, and while the former remain implicit and diffuse, the latter are explicit and drafted in codes, and their non-application is subject to punishment (material and/or moral). Broadly speaking, however, by focusing so much on how norms relate or fail to relate with the rules of law, the norms-cum-economics schools have missed the opportunity to study how rules of law are used by the actors (users), and how in so doing economic strategies may be deployed. Norms and rules of law are not simply followed or interiorized, as they are primarily represented in language and practice. When, for instance, a crime takes place, witnesses are expected to narrate what they saw. To the crucial question of What happened?, witnesses come up with alternative accounts, in the same way that police, prosecutors, and judges will propose narratives of their own, which in turn are based on those of the witnesses’. The whole process can therefore be looked upon as one of representing norms and rules of law through narratives situated along different social spectrums. Norms and rules of law are linguistically expressed in narratives that are supposed to account for the facts of a happening. Once pressed by an investigator or judge, what in effect actors narrate is the normative world that they themselves, their kin, opponents and victims all inhabit: they inform their investigators about rules that ought to be followed, restrictions and prohibitions, and contractual settlements. For the researcher, such documentary evidence ought to constitute the prime tool of research, out of which a reconstruction of the “case” in question is made possible in the actors’ own words. Rather than begin with constructed notions of what the rules of a particular system are and how they operate, we shall begin with the narratives themselves and examine how they are constructed. Judges often proceed like researchers in that they want, within the shortest delays possible, to transform their cases into factual evidence: the whole case miraculously metamorphoses, like in a final judgment, after all evidence has been carefully weighted, into a matter-of-fact. But considering that establishing factual evidence is no easy matter, it would be more rewarding to see what the concerns of actors truly are, how they inhabit their worlds, and how they represent their being-in-their-worlds.


What happened?


How is it possible then to reconstruct a single criminal case from the viewpoints of the actors themselves? Each homicide is an event that has been witnessed by at least two persons: the assailant and victim, assuming of course that either one or both are still alive after the murder or attempted murder. Each homicide begins therefore with those who witnessed it and ends up with a sentencing. In the meantime, the process that begins with the police and prosecution investigations and ends up with the final ruling could be summed up in the following: the subjective statements of witnesses—“I saw,” “I heard,” or “I was told”—are transformed through the judicial process into objective entities and factual evidence. The final metamorphosis takes shape in the ruling: various statements are incorporated in the text of the sentencing, statements that originally have been uttered on various occasions in the presence of legal authorities. Like the rules of law, the rulings would aim at reconstructing an objective reality outside the confusing subjectivities of the actors. In sum, the judiciary aims for an objective reality not unlike that of the social sciences model. For the researcher, the aim is not so much one of destabilizing such objective validities, as much as a description of the process that creates them, brings them into existence, prior to posing them as objective truths. To use the language of Bruno Latour,[5] we would like to move from the matters of facts, which the judiciary cherishes so much, and upon which final rulings are based, to the matters of concern, namely what constitutes the concerns of actors in the aftermath of a homicide. Once a killing occurs, a web of social relations and practices emerges at the surface, from which the judiciary attempts to reconstruct its case: an object—the “case” per se—emerges out of such entangled relations, and the object in question is constructed out of matters of fact that are objectified realities out of the subjectivities of the actors that made them. The judiciary, however, is neither interested in the concerns of actors nor in their entangled narratives and relations. Out of such relations, subjectivities, claims and counter-claims, it aims in the final analysis towards an objectified reality of the disputed event. Whether we think that for a particular instance, the process was “fair” or “unfair” to the participants is not the heart of the matter. What interests us here is how the aforementioned process of making law concretely takes shape.


Threads of narratives


Like all stories this one has many twists and turns, as the “same” events could be recounted from the point of views of different actors. Let us therefore begin with the official version and see what the Idlib criminal court (Jinâyât)[6] had to say when it elicited its final ruling six years after the crime.[7]


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. There was a land that was a left over (matrûk) near the village school. 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 allegedly 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. 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 immediately. He then shot to death Ibrahim’s son Muhammad and his daughter Shamsa (he never admitted killing the woman), but missed Ibrahim’s other son ‘Akal[8] 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 he shot them in self-defense.


On 26 April 2000 the Idlib criminal court sentenced Hilal for life imprisonment, but reduced the penalty, for what it called “the mitigating appreciated causes (al-asbâb al-mukhaffifa al-taqdiriyya),”[9] 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 two sons and daughter have left their sheep graze over my crops. When we were arguing, Muhammad grabbed me from behind while his brother ‘Akal hit me with a hammer on the face. I fell on the floor. My son Anwar came with a gun, with which I fired three warning shots in the air. But the victim Ibrahim pushed his sons to attack me. I therefore fired towards Ibrahim, and when his son Muhammad tried to take the rifle from my hand I shot him too, then I shot the other son…”


As each case begins with a police investigation, our starting point will be the depositions to the police right after the murder. In the Syrian penal system, depositions to the police must be looked upon as second-degree narratives, or as narratives based on prime accounts,[10] simply because the original depositions in their question-and-answer colloquial Arabic form are seldom reported.[11] The police is therefore already constructing its own narrative, as statements come carefully filtered and polished in official Arabic for the purposes of presenting the case to the prosecution and higher courts. As a result, such depositions take disproportionate importance for the final ruling, even though, according to the Damascus court of cassation (Naqd),[12] they should not (more on that later). The contrived nature of the police depositions (or the “seizure form,” waraqat dabt, as they are more commonly known) should not discourage us from looking beyond their surface. Let us see how that works.


The “seizure form” (or “deposition”) generally begins with the way the police knew about the homicide: they either witnessed it on their own, or else had a witness and/or informant who volunteered to inform them (not all informants are direct witnesses, even though at times they are introduced as such). The police form explains how the information was received, the first contacts with the crime scene, witnesses, and preliminary material evidence. It then goes on to question the first witnesses available. In this instance, after interrogating the village informer and following a full description of the crime scene, the first victim-cum-witness was interrogated the night of the murders.


My name is ‘Aql Ibrahim, born 1962, from the village of al-Warida, the farm of al-‘Adliyya, married and illiterate, do not carry at the moment an identity card,[13] Arab Syrian.


I inform you that we[14] the inhabitants of the farm we own a wall for grazing (jidâr li-l-ra‘i), used by all the people of the village. Today we were grazing our sheep in front of the home of the defendant Hilal, which is close to our land and north of the school. In this location where we are now, where my relatives (ahl) are, it was there that the defendant Hilal was sitting in front of his home, came to me and said: ‘Stop mingling with me.’ I don’t know why he said that. He then tried to hit me, but my brother Muhammad pushed him away. He then told us: ‘That’s fine you sluts!’ He went to his home and brought a Russian rifle that he had kept at home and tried to hit us. But when my father was attempting to push him back he came to us charging his rifle. At that moment he fired several shots and hit my father who fell on the floor, then headed south towards my brother Muhammad and shot him too. He also killed my sister Shamsa and tried to shoot me, but there were no bullets left in the rifle. I then went after him, but my nerves broke down. I couldn’t catch him. I request a full investigation, posing myself as a personal plaintiff (mudda‘î shakhsî) against Hilal al-Khalif for having killed my father Ibrahim, my brother Muhammad and my sister Shamsa. That’s my deposition.


The deposition was read to him, he accepted and signed it.[15]


That was the deposition of the only surviving victim who, according to his own account, managed to survive simply because the assailant had no bullets left. The syntax is here typical of depositions in general. Since the questions posed by the police were not included in the text, only the answers were left, and kept for the most part in the first-person singular form. Instead of the original question-and-answer form, the deposition achieves a first-person “narrative”: it flows smoothly, describing the events that led to the alleged crime and its aftermath. The tone is a bit formal, unemotional, comes directly to the point, and seems contrived in what it is attempting to convey. Moreover, the transcription, besides precluding the original line of questioning, has reshaped all utterances in official Arabic. Hence the transformation is a double one: no questions and answers and no colloquial Arabic. Some utterances may have also been cut altogether. In sum, the performative side of the speech act is considerably muted, narrowing the use of language at best to its descriptive level.[16] But what the only survivor (and future plaintiff) managed rather well, in spite of all limitations, was to give that unmistakable impression that “the village wall” was a common property, avoiding even to mention that it was at the center of all conflicts.


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


‘Aziz ‘Umar al-Shaykh was introduced, immediately following the previous deposition, as a “witness to the incident (shâhid li-l-hâdith)”:


My name is ‘Aziz b. ‘Umar al-Shaykh and ‘Aysha, born in 1977, from the farm of ‘Adliyyah, I do not carry at the moment a personal identification card, single, literate, worker, and Arab Syrian. I inform you that this evening I was sitting with the victim[17] Muhammad Ibrahim al-Hasan in front of the house of Hilal al-Khalif, located roughly a 100 meters from us. He came to us and requested from the victim Muhammad to go away with his sheep. Muhammad replied that this land is for grazing for all the people of the farm, and we’re one of them. As they exchanged harsh words, Hilal went running to his home and pouring insults over Ibrahim and his kids. Ibrahim the father followed him to stop him, as Hilal stood by the door with a Russian rifle. But the killer Hilal shot him to death three times. When Muhammad approached him he shot him to death too, emptying five bullets in his body and without even talking to him. He then shot and killed Shamsa who was standing east to her brother. But he couldn’t shoot ‘Akal because the rifle was empty. Hilal used to come to the victim and shoot at him directly. The causes have to do with grazing. This is what I’ve seen and know and that’s my deposition.


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


Notice here, as before, the witness’ strategy was to underscore the alleged common ownership of the village wall, without, however, presenting the hearer (or reader) with any historical background. Such strategies of historical denial tend to be common, as they opt for giving more weight to the present—the immediacy of the killings. We now come to the accused Hilal’s statements.


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


I inform you that this evening I was sitting in front of my house located at the ‘Adliyya farm, north of the school, when I saw Ibrahim al-Muhammad, his son ‘Aql[18] and daughter Shamsa leaving their sheep graze over my plantations. I went to ‘Aql and told him ‘Stop mingling with me.’ He replied ‘You’re a sick man and I don’t feel fighting with you.’ Then came his father Ibrahim and told them ‘Slaughter him,’ because I warned you a long time ago to leave the farm. ‘Aql then came back to me and beat me up. I told them ‘I’m going to complain.’ His sister Shamsa came and separated us. Then came his brother Muhammad and grabbed my mouth, and then ‘Aql came back and hit me with a hammer. I fell on the floor and managed to escape from them. I went home and brought a Russian rifle which I had filled at home. I went out and shot three times up in the air hoping that they would run away. But they assaulted me while their father Ibrahim was encouraging them to do just that. He told them ‘Slaughter the dog.’ Ibrahim and his son Muhammad attempted to take the rifle from me, and I told them for the last time ‘For the sake of God leave.’ But they kept coming to me. It was then that I shot Ibrahim several times in self-defense. When he fell on the ground his son Muhammad assaulted me, and we were only a meter apart, and while he was trying to take the rifle from me I shot him several times. I then headed east and started shooting randomly. I don’t know if I shot Shamsa…I ran away north and gave myself up to the police at al-Buwaydir…


The three accounts, even though emanating from three different “witnesses”—a victim, an “outside” witness, and the assailant himself—are remarkably very close in content, style, and syntax. Assuming that the police did not “play” with the content of the depositions, there nonetheless seems to be an unreflective, if not deliberate, attempt to create cohesiveness from the accounts of differently situated actors. As we shall see later, and as has become the norm in Syrian penal procedures, there will be a heavy reliance in the final drafting of the sentencing upon the early depositions which for the most part were collected the night of the murder. It is as if coming up with a relative cohesiveness has become one of those hidden normative rules in the Syrian penal system: we need to know from day one what happened! Rather than come up with divergent loose statements, the police is searching for a “narrative” structure from day one. Notice, for instance, how all three “witnesses”—even the two directly implicated—were not pressed to give more: in other words, they were not squeezed with a hard line of questioning to detect inconsistencies and the like. The way depositions are constructed is obviously not only related to the line of questioning that police, prosecution, and courts adopt. (We need to see whether each one of those instances adopts a different stance, or whether the form of questioning is grosso modo very similar and is not subject to much change when witnesses are interrogated either by the police, prosecution, or the courts.) What witnesses decide to say or not say in the presence of a police officer, prosecutor, or judge, is related to a host of circumstances. People learn what to say and how to utter something when they are in private or public. There are unreflective normative rules that guide ordinary talk and discourse as well, and while trespassing such rules is not as remote a possibility as one might think, it might nonetheless create problems for the actor in question. If actors are not that free to say what they want to say, or “what is in their mind,” it is because they are part of a normative order to which they feel they belong, and which provides them with the security that they need. Consequently, when a crime happens in a community, and even though crimes are generally not routine occurrences, describing or narrating such a happening, being mediated by the rules of speech and language, is subject to all the societal pressures that one could imagine. What is unsaid may therefore prove even more crucial than what is said. For the researcher, detecting silences, hesitations, contradictions, and blanks in what actors have uttered when examined, may prove even more important than analyzing the utterances of actors.


As Paul Ricœur­­­ has pointed out, the activity of witnessing is crucial for both the judicial process and historiographical writing.[19]


In historiographical writing the document stands as proof (evidence) that what the historian claims to have happened effectively took place. In other words, the document is not only what brings forth evidence, but it is what stands in lieu of the act of witnessing per se. The document is therefore the witness. Historians thus typically use documents to construct factual evidence. Such factual evidence is then narrated in terms of both its temporal and logical (rational) elements, and out of this narration emerges more abstract factual constructions.


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


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


  1. The factual phase. Facts are valued for their own sake: they are verified and assessed, prior to being approved as factual evidence.
  2. The explicative phase. The approved facts are brought together in order to causally explicate the making of an event.
  3. The representative phase of historiographical narration and writing. The primacy of representation of an event or happening often subdues steps (1) and (2) to the final operation of narration in a premature shortcut operation.


For our purposes here, that of judicial narration, it worth noting that only judges assess the facts, while police and prosecutors are supposed to present (and not re-present) the facts to the judiciary. Since judges are the ones who have access to the totality of the file, they develop that ability to compare utterances, statements and depositions, prior to deciding what ought to be included as a matter of fact in the last instance—that of the sentencing. In principle, therefore, the police and prosecutors ought to do their best in presenting as many factual evidence as possible, and from a myriad of viewpoints. They are not supposed to explain anything, or even tie up the event/happening in its totality. An ideal police officer or prosecutor should push the cross-examination process to its limits,[20] and while realizing that actors deploy all kinds of strategies when pressured for more answers, they should also doubt what actors present as self-evident and acceptable. In practice, however, we have noticed[21] that depositions tend to be blatantly repetitive, and the cycle of repetition begins with the police, continues with the prosecution up to the higher courts, as if the representation of the event has already taken shape from day one, ignoring what Ricœur has labeled as the factual and explicative phases.


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


All such negligence—assuming, of course, that it is only a question of “negligence,” if not pure incompetence and ignorance of the procedures—is further consecrated in the first systematic report of each case, namely what is known as the “ihala judge report.” The ihala judge (“referral judge,” juge de renvoi) is a kind of rapporteur, someone who gives his approval over the facts presented thus far by the police, prosecution, and medical authorities, and consequently judges that the case ought to receive the full attention of the criminal court. He therefore drafts a preliminary synthesis, narrates the facts, and concludes with further proposals on how to proceed with the case, and the kind of punishment the defendant(s) should receive. The problem, however, is that by the time the referral judge drafts his report, the case is almost sealed, meaning that no surprises are to be expected until the very end. What ought to have been preliminary reports by the police and prosecution are now endorsed by the referral judge and taken for granted. Once this stage is achieved, it would be difficult to imagine that the case would take an unexpected turn. Crucial in this respect is the indirect endorsement of the preliminary police reports. When I reported to retired judge Hanna ‘Abd al-Nur, who was at the head of the Damascus based cassation court in the late 1990s, my personal concerns regarding the way the police investigates, and how those preliminary investigations metamorphose into validated facts throughout the various stages of the trial, he claimed that “as judges we do heavily rely on the police reports. We generally assume that what comes in those reports has some truth in it…The police usually manages to get the truth from the mouths of the plaintiffs, suspects and witnesses in one way or another…even through intimidation or torture…We find such reports reliable enough for our final rulings…”[22]


This is not the way, however, the cassation court look at those police investigations. Now that the cassation rulings are regularly compiled and indexed,[23] it is possible to realize how much the higher cassation court in the last couple of decades has been incessantly reminding judges that what witnesses utter in the presence of police officers have no value per se, unless the witnesses repeat what they had uttered during the cross-examinations in the hearings of the criminal court. I shall limit myself to a couple of such rulings as an illustration to my general argument.


Rule 406. The confession (i‘tirâf) in the presence of police officers should not be considered as evidence (dalîl) unless it has been confirmed by another confession in front of the judicial authorities (al-qadâ’), or it has been proven sound (sahîh) and in congruence with other evidence of the case.[24]


Rule 421. The defendant’s statements in a police deposition, even though such depositions in criminal matters are for the sake of information (ma‘lûmât), should be taken into consideration, including the defendant’s confession in the deposition, even if the defendant withdraws his statements in the presence of an investigative judge and the court. But that should be done only if the court feels comfortable (itmi’nân) with [such information], and after it corroborated it with further evidence, which is part of its objective power (sultatuhâ al-mawdû‘iyya) that grants its independence, as long as it assesses (tuqayyim) evidence on solid grounds.[25]


Rule 426. Police depositions in criminal matters are only ordinary information (ma‘lûmât ‘âdiyya), while an accused’s preliminary confession (i‘tirâf awwalî) should be confirmed through other evidence, in particular if it turned out that it came from him through violent and harsh means.[26]


The cassation rulings are abundant with rules of that kind, either framed with slight variations, or redundant in their substance, even though at times contradictory and confusing. The general tendency, however, is not to give the early statements by plaintiffs, defendants, and witnesses, more than what they deserve. They ought to be considered as preliminary information collected by the police in the aftermath of the crime for the sake of presenting the case to the prosecution and ultimately to the criminal court. But, revisiting a sample of cases of the last couple of decades, we know that such guidelines are seldom followed. In other words, and following the three steps proposed by Ricœur to understand the process of historiographical and judicial writing, what characterizes the system is a bypassing of thorough data collection and analysis and a rush towards representation, which is a rush towards judgment. We will in due course, by the time we expound upon the case, discuss the implications of “the primacy of representation,” and how it might affect the objectivity of facts. Suffice it to note at this stage that the primacy of representation de facto implies that from the early stages of the investigation “raw facts” are transformed into “factual evidence.” Needless to say, how such a transformation occurs is of prime importance for the subject matter under consideration here. To pursue the matter further, I will follow Ricœur more closely on the crucial issue of witnessing.[27]


  1. The basic premise behind witnessing is to discover how an autobiographical story (récit) metamorphoses into an objectively accredited narration. The main purpose of the autobiographical récit would be to assert the factual reality of the witnessed event: is the author/narrator a trustworthy person? In the Syrian penal system, witnesses in criminal matters have their “kin” background routinely checked: what kind of “relationship” do they nurture towards the main participants? But if kinship is overtly checked prior to an investigation, and explicitly indicated by the investigative judge on each “interrogation form,” the biggest drawback remains the “autobiographical” element in witnessing. As we shall see later, the autobiographical side becomes more visible, for instance, in the memos addressed by the defendant to his attorney, while remaining muted in the first police deposition and in later statements addressed to officials. In effect, if many of the witnessing accounts seem like deliberately staged, it is not because of a cover-up or conspiracy, but mainly due to the heavy restrictions that actors place upon themselves. It is indeed as if they witness from the viewpoint of their “group” rather from the standpoint of the “I.” Similarly, police and prosecution behave with a “group”-like mentality, attempting not to trespass the borderlines set by their communities. The assumption here is that the more a society becomes “individualistic” the more actors are prone to manifest their “auto-biographical” side.[28]
  2. By the time the actor metamorphoses into a witness, he or she learns—or develops that innate ability—to narrate what is relevant. It is at this stage that the “I” which has witnessed the event withdraws behind the dubious status of an “objective witness” whose aim is to account for what is relevant from the judicial and/or social perspective. What we often notice is a deliberate rush towards representation and judgment, which in the final analysis conceals as much of the “I” as possible. In other words, by rapidly aborting and placing pressure on the process of fact finding, not only alternative representations are avoided, but all kinds of individualistic accounts are also evacuated.
  3. The witness-cum-narrator always narrates as if a third person is present, besides himself (herself) and the prosecuting official authority or judge. In societies where kin feeling is predominant, the third person tends to represent the normative values of the group directly or indirectly implicated in the crime in question, thus diminishing the possibility of the “I” to surface at the forefront, at least in the presence of an official authority. In this case, the attorney or some other privately appointed authority may assume the role of a confidant for the accused or witness. Moreover, since the receptor will not necessarily perceive the narration in the same eyes as the narrator, the investigative authority tends to deploy strategies to demarcate itself from what witnesses have stated, in preparation for the final verdict. But those same authorities, however, will also have to convince the actors that their version of the story has been objectively validated, thus pushing them to borrow statements from the various parties involved in the conflict. That is particularly true whenever the community in question is bound by strong kin norms and the like.[29]
  4. Considering that a narration is a structured account of an event, which may carry a meaning and purpose, the issue that is relevant for our purposes here would be to see whether it would be beneficial for analytical purposes to push for the distinction between “raw accounts” and “structured narratives.” During an investigation, actors are seldom permitted to freely narrate on their own, since their utterances are framed within a question-and-answer formula. Their statements tend therefore to de facto fall into isolated fragments, which police reports artificially piece together into first-person narratives without any transcription of the original utterances. Only in the second stage, when actors are in the presence of an investigative judge is the question-and-answer mode kept in its original form. And even here the utterances are re-transcribed into an official Arabic, which, once more, metamorphoses the original into something else. In short, what we notice all along is a willingness to transfer each case to the criminal court in sets of already articulated narratives. But whose narratives are they? When, under special circumstances, we get a rare glimpse of actors narrating on their own, the picture may shift in another direction, pointing to other concerns, different at least from the factual evidence constructed by the judicial authorities. Finally, a parallel issue ought to be considered, regarding that of a possible distinction between narrative and discourse: when a narration is constructed in such a way that it intends to go “beyond the fact” into a self-articulated meaning (with social connotations), it is then constructing a de facto discourse of the witnessed event. Ricœur is careful, however, not to push too narrowly the distinction between narration and discourse: “The attested fact must be meaningful, which renders problematic a harsh distinction between discourse and narration.”[30] For our purposes here it may be useful to speak of a “discourse of justice,” while keeping the possibility of individual or collective discourses by social actors an open one.


Let us see how narrations develop throughout the investigative process. The encounters that plaintiffs, defendants, and witnesses have with investigative judges immediately tag along police investigations. But while the police examinations of witnesses are all filtered in a single report (known as the “seizure sheet,” waraqat dabt), the depositions drafted by judges are on a one-to-one basis. Consequently, as each witness receives his or her own individual account, the question-and-answer style is better preserved, even though the attempt to bring cohesiveness to the case remains as strong as before. Let us discuss first a couple of the accounts of independent witnesses.


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


I was at home during the fight, which is only 300 meters away. I heard the sound of shots. I went out and my son gave me a ride on his motorbike. When I reached the scene of the fight I saw ‘Akal[31] al-Muhammad beating the defendant Anwar b. Hilal with a rifle’s magazine over his head. When I asked him why, he said that his father killed my family (ahl). I saw the bodies on the ground in front of Hilal’s home. I saw the defendant Hilal a hundred meters away, who was then joined by his son Anwar and his wife. They then ran away. A day before the incident I saw the defendant Hilal drinking tea with the victims. The causes of the dispute (khilâf) is that there is an uncultivated land (ard bor) that we call “the wall,” estimated at six hectares, and the victim used to summon the defendant Hilal not to graze his sheep on the land. The defendant Hilal also summoned the victim not to come with his sheep to the wall zone. I think that’s the cause of the dispute. [Dated 2 April 1994]


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


Another witness, also introduced as “close to both sides (qarîb al-tarafayn),” was interrogated by a judge.


The day of the incident I was 200 meters away from the defendant’s home Hilal. I saw him in front of his house, and the three victims and the plaintiff ‘Akal were close by grazing their sheep in front of the defendant’s home Hilal. The defendant Hilal summoned the plaintiff ‘Akal to move out from his space with his sheep. He refused and they started a fist fight. The victim Ibrahim said: ‘Shame on you!’ And he shouted: ‘Let us behave properly as all people do.’ Suddenly the defendant Hilal entered his house and went out with a Russian rifle in his hand. Right in front of his home he met with the victim Ibrahim and shot him to death. Close to him were his three kids: ‘Akal, Muhammad and Shamsa. He shot to death Muhammad and Shamsa, then pointed his rifle towards ‘Akal but no bullets were left. He dropped the rifle on the ground and ran away. As to the defendant Anwar al-Hilal he was working on the land cultivating potatoes and has nothing to do with the fight. But when he heard about the fight he followed his father out of fear for himself. I add that a day prior to the fight the two sides did spent an evening together, and that there were no disputes among them. [Dated 5 April 1994]


There were more accounts like the ones quoted above. If they look all similar it is because neither police nor prosecution were aggressive enough to work out the details and hammer the witnesses on subtle discrepancies and the like. If we look at the five accounts as specimen, including that of the defendant, we realize that they add little to one another as long as we remain at the macro level of events. But as soon as we go into the details the discrepancies soon begin to surface, in particular regarding the defendant’s son, and alleged utterances and provocations by the victims prior to their being shot by Hilal, not to mention the status of the village “wall,” and the exact positions of the victims when they were shot. But do all such details matter? The crime seems simple enough not to go any further: after all, the defendant gave himself up and confessed his crime on the spot, and he only denied killing Shamsa (we shall see the relevance of this denial later). So why bother? From its early days, the case seemed already clear cut and locked into Hilal’s full responsibility. It became a question of deciding on the punishment and compensations for the victims’ heirs. Do details therefore matter? And which details? The actors’ obstinacy at ruling out incongruent details stems from an inner feeling that “all is clear.” A shepherd shot to death three family members over an alleged land dispute and then ran away: in the actors’ mindset, not much could be done to “save” the defendant. But the real issue here is the withholding of details, minute descriptions, and data that may not fit with the already constructed whole. To quote Bruno Latour, “If social scientists wanted to become objective, they would have to find the very rare, costly, local, miraculous, situation where they can render their subject of study as much as possible able to object to what is said about them, to be as disobedient as possible to the protocol, and to be as capable to raise their own questions in their own terms and not in those of the scientists whose interests they do not have to share!”[32] What Latour admonished to his fellow social scientists, could be reiterated regarding actors in general, including in our case here, witnesses, policemen, prosecutors and judges. We will encounter some disobedience later, but not in any of the official documents. (Hilal’s three-page deposition to the investigative judge was indeed the most detailed. It provided a background for the alleged land conflict, a description of the events that led to the crime, and was concluded with a brief question-and-answer session with the judge, which I will discuss later. Since the second part of this paper is entirely devoted to Hilal, I will skip his deposition for the moment.)


The criminal case as a legal artifact


A common mistake while dealing with criminal matters, and which goes back to a notion of the “social” that owes much to Émile Durkheim,[33] would be to assume the existence of a broader “cohesive society” whose normative values the actors obey or fail to obey. So when, for instance, we are faced with a criminal case whose witnesses and prosecutors seem reluctant to go beyond certain facts, we attribute such a behavior to a presumed “norm” within “society” at large, that is, the community in question. The problem with such an approach, however, is that we will fail to see how a criminal case concretely proceeds. What in effect holds a given “society” together are not simply the presumed “norms” which push actors to behave in a certain way, whether predictable or not, but all kinds of networked experiences which at some juncture translate into objectified “artifacts” or “things” through which actors deploy their strategies. Once a crime takes place within a community, it immediately translates into a “case” in the hands of the police, who in turn begin to transform it into a “file” with documents, depositions, reports, photographs, procedures, and hearings. In other words, a routine crime, which initially has no particular shape or structure, and per se does not causally obey to any rational “social norm,” is soon transformed into a method of inquiry, as something that appears to exist only as an artifact because of the way things, data, and events are examined. It is the existence of a multitude of such artifacts that would constitute the solid ground for the presumed cohesiveness (or lack thereof) of a “society” of individuals and groups.


A crime therefore metamorphoses into a method of inquiry, a thing that is objectified into the documents and images that constitute the case-file. When actors discuss the crime, say, in the privacy of their own homes, they will in all probability not adopt the same language and behavior that they would in the presence of a prosecutor or judge, because, as an outcome of institutional constraints, the crime-as-artifact pushes them to different forms of expressions, some of which may be more constrained than the ones adopted in private, or conversely, the objectivation of the crime may push them towards new forms of expression and representations. To come back to our case here, once the case passes the initial stages of police and investigative judge, it is picked up by a referral judge who provides it with its first preliminary synthesis.


“In the name of the Arab people of Syria”: thus begins the referral report, a statement that is there to remind us that justice is both majestic and always performed in the name of the people. Now eight months after the crime, and after the police and investigative judge interrogations were done with, the case finally begins to receive its shape. It is in effect in the handwritten referral report, dated 6 November 1994, that all previous depositions and memos converge into a global structure that is there to influence the case until its very end. The case now receives a purpose, an assessment of the facts, an elucidation of who said what and which accounts ought to be taken more seriously than others, which of the accounts overlap (an indication that facts are corroborated), and, finally, the judge’s proposals to go on with the case: who should or should not be punished, and what should be the regiment of punishments and compensations. Experience shows that the referral reports are very decisive, and that one is to expect little change from this point on either in terms of factual evidence or the defendant’s status. A case could still drag on, however, for several years in a row for a variety of reasons, chief among them is the difficulty of getting the witnesses on time during the court hearings (see below), even if no new factual evidence is brought into the picture.


In what may seem like a pure exercise of judicial authority, the referral judge orders the case around seven points, which in his own words, reads as follows:


  1. Stop the trial of the defendant Anwar b. Hilal for the crime of deliberate homicide (qatl ‘amd) and participating in it for lack of evidence.
  2. Pass all relevant papers to the district attorney to pursue all necessary procedures, and to the referral judge, in order to proceed with the accusation of the defendant Hilal Khalif al-Khalaf with the crime of intentional killing (qasd) for more than two persons, based on article 534, section 6, of the penal code, and the accusation of an attempt to intentionally kill based on article 533, section 199, of the penal code.
  3. Try him at the criminal court in Idlib.
  4. Proceed with the suspicion against the plaintiff ‘Akal Ibrahim al-Muhammad for allegedly committing the felony of bodily harm, based on article 540 of the penal code.
  5. Try him at the Idlib criminal court.
  6. Charge the defendants ‘Akal al-Muhammad and Hilal al-Khalif for the military fee.[34]
  7. Once the sentencing is finalized, forward the file to the military judiciary in order to investigate the illegal possession of military firearms attributed to the defendant Hilal al-Khalif and Faysal al-Khalaf.


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


The section on “legal discussion and its application (fî al-munâqasha wa-l-tatbîq al-qânûnî)” is of special relevance for our purposes here.


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

and since the statements of the plaintiff ‘Akal, his mother, and witnesses X and Y, in their depositions, and the confession attributed to the defendant Hilal al-Khalaf in the police report and his cross-examination [by the investigative judge], all point to Hilal shooting at the victims;

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

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

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

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


I have deliberately highlighted the three sentences in the referral report which all of a sudden become the punctum of the whole case: 1. Hilal was the only one shooting, and no one else had firearms; 2. Hilal did not act in self-defense; and 3. Hilal should be punished under article 534 of the penal code. By choosing article 534 rather than 533 the judge deliberately opted for a higher punishment, but he also saved Hilal from the death penalty. In effect, while article 533 sentences the accused between 15 to 20 years with hard labor for intentionally killing someone (qatl qasd), article 534 extends the punishment to life imprisonment, for instance, if two or more persons were killed (section 6). Only if the accused committed a deliberately planned killing (qatl ‘amd) would capital punishment apply (article 535).[35] (A deliberate ‘amd killing is also intentional, qasd, but of a higher level.) When the case-file reached the referral judge it was composed of a multitude of police depositions, cross-examinations, medical reports, and lawyers’ memos and the like: it still lacked, however, a clear focus, even though the police report that contained all the preliminary depositions clearly made Hilal the prime and only suspect. Now the referral report stated what the three main issues were: but were the arguments well founded? And was there enough reliable evidence? If we look carefully at the referral’s concluding statements we realize that they were mostly based on the accounts of the two witnesses X and Y, which as we shall see later, were presumably kin related to the victims. More importantly, from the four specimens quoted above neither depositions nor cross-examinations seem thorough enough to warrant any reliable witnessing.


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


In our case here, the hearings stretched for a year, from November 1996 to December 1997, producing in all 20 pages of court summaries. By the time the referral report was drafted only one new issue came to the forefront, with which I will deal extensively in the second part of this essay, and which has to do with the “sanity” of the accused. Other than that, the referral report has refocused the case on a couple of issues: 1. To whom did “the wall” belong? Was its ownership common to all the inhabitants of the farm? 2. Did the accused Hilal clearly and unmistakably inform his victims that “the wall” was “his” own property? 3. How were the protagonists situated vis-à-vis “the wall” at the moment of the crime?


Let us consider in some detail the session of 29 December 1996 as an example of how court hearings normally proceed.


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

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

-         He showed the five-member medical report, which he read.

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

-         Witness X was called, born 1937, identification card number…, paternal cousin to the victim Ibrahim and the husband of his sister, and also cousin of the accused, with the same kin degree (nafs darajat al-qarâba). After taking oath, and stating that he has no hostility (‘adâwa) to anyone and is not kin biased (khâli al-qarâba), he was questioned and said that he confirms what he had stated earlier on 2 April 1994. He did not hear the accused Hilal summoning the victim Ibrahim not to graze his sheep in the wall zone of the village when they were drinking tea the night of the incident. That’s my testimony.[36]

-         Replying to a question,[37] he said: the wall of the village is for the entire village and ready for grazing.

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

-         Responding to a question, he replied: The victims never had their sheep graze over Hilal’s properties.[38]

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

-         Witness Y was called, born 1973, identification card number …, knows both the accused and the victims. The victim Ibrahim is the husband of his paternal aunt. After taking oath, he said: The day of the event I was asleep, the time was roughly 3:00 in the afternoon, because as a conscript I was on vacation, I heard several shots. I woke up and headed towards the place of the shots, and saw all three victims—Ibrahim, his son Muhammad, and daughter Shamsa—lying on the ground. The bodies were roughly 8 meters apart, close to the accused Hilal’s house. I realized that the accused Hilal had dropped his rifle on the ground, which was then picked by the plaintiff ‘Akal, and I took it from ‘Akal. When Hilal did run away, ‘Akal attempted to stop him, but he couldn’t. I also saw the suspect (zanîn)[39] ‘Akal hitting the accused’s son Anwar on his head after his father, brother and sister were all killed.

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

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

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

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

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

-         [The court moves to another case.]


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


We finally come, once more, to the crucial issue of leaving to the chief judge the task of paraphrasing and summarizing the statements of witnesses. We have seen a similar policy with the police depositions, and even with the examinations conducted by the investigative judge. Needless to say, when the original utterances of witnesses are overlooked in favor of summaries dictated to a court scribe, the judge de facto acts as an interpreter of speech acts, and the case is “constructed” even more swiftly as it moves from one authority to the next. Considering that when a person issues a serious utterance he or she will always be doing something as well as saying something, an utterance has therefore what J.L. Austin labeled as a certain illocutionary force, which is equivalent to understanding what the speaker was doing in issuing their utterance. But such a power to “understand” is left to the judge’s discretion, which is reflected in the way some utterances are rendered into official Arabic (a great deal never makes it to the official script). Notice in the above hearing that even though the text is mostly kept within the third-person singular, it moves at times to the first-person mode in abrupt shifts, as if the chief judge chose to do so simply to give more emphasis to the “I” whenever he felt like it. The text also avoids even a minimal paraphrasing of the questions, as if only the answers matter. In sum, there is so much filtering in the transcripts of the court hearings that, in the aftermath of the referral report, the case begins to swiftly receive its final touches, leaving less and less room for the actors to maneuver.


Is he competent to stand trial?


But what makes the case different from all others is neither the verdict nor the witnesses’ depositions. At some point the defendant Hilal started 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 were undated, it is impossible to determine how much of those notes were drafted by Hilal himself, or the kind of outside help (from inmates, family and friends) he might have received. As we only come to know defendants from their official depositions to police and prosecution, Hilal’s “writing”—whether “his” own, or through outside help—does constitute a unique opportunity to look at his mindset. After all, not that many shepherds have memoirs or express their views in writing.[40]


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,[41]


From your client Hilal a summary of how the incident took place. The day of the incident I was alone in my land[42] working and cultivating. The land is roughly 100 meters away from my house. Four hooded shepherds came by with their sheep, and they’ve let 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.[43] 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 floor all of them started beating me. They pulled me all over the ground as I was severely bleeding. My wife came and started screaming. She attempted to save me. They 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[44] 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 (bidûn wa‘î), since I couldn’t run away. While they were attempting to take the rifle from me Ibrahim got shot and fell on the ground.[45] When his son Muhammad rushed towards me the second shot was fired, and hit him directly.[46] I have no knowledge how the girl got shot.[47] I ran away with my wife and son Anwar towards the east in the direction of the police station at al-Burid, and before we got there Nuri al-Nawwaf[48] 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 (shuhûd al-haqq al-‘âmm).[49] Muhammad Shaykh Muhammad, his son Walid, ‘Umar Shaykh Muhammad and his son ‘Aziz,[50] 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 God’s Law (shar‘) and law (qânûn),[51] because there’s between us previous litigations (khusûma) 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 who are attempting to corner me while in prison, in order to benefit from the land and homes,[52] 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 is 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 alleged feuds and bloodshed between the two families. Let us focus for the moment on the following:


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


We will 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 possibility of peaceful settlement.


Within a month of my arrest, ‘Akal al-Muhammad[53] 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 (ightisâb) my homes and land,[54] 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).[55] My brothers had met God’s will and their children have now joined my family, which has grown to 33 souls (nafas), all of which homeless and with no place to stay. Our land has been robbed from us by ‘Akal al-Muhammad and his maternal uncles ‘Umar al-Shaykh and Muhammad al-Shaykh. My generous master if you can bail me out (ikhlâ’ sabîl) I’ll take it upon myself (ata‘ahhad ‘ala nafsî) 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 is impossible to know how close it was to the final ruling. 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 sharî‘a 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 courts 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 courts with the public part of the verdict only. In rural and tribal areas, since blood money settlements are the norm, when the courts make their own assessments, not only do their verdicts tend to overlap with local norms, but compensations have to meet expectations; otherwise, the cycle of violence might be once more revisited. By contrast, in urban areas like Aleppo, particularly among the middle and bourgeois classes where blood money settlements are not normative, compensations are assessed on the expectations from past courts’ rulings, which on average tend to be low: the plaintiffs would then assess whether to go for a private settlement and “get more,” or proceed with the case.


Our démarche assumes that the use of rules by actors is as crucial as the understanding of the rules of law. Rather than simply focus on the rules of law, their internal logic and coherence (or lack thereof), we have deliberately shifted our analysis at how social actors understand and make use of the legal rules in combination with their customary practices. The behavior of actors is detected mainly, though not exclusively, through their speech acts and utterances. What could be detected in the language of users (plaintiffs, defendants, witnesses, police and investigators, judges and lawyers, and even doctors and psychiatrists whose language is assumed to be “scientific”) is an ability to index action according to one’s needs and strategies. They do so while they will have to keep an eye on the rules, and, at the same time act in conformity with their own social and economic interests. In effect, it is through practice—the use of rules by actors—that the link between law and the economy reveals itself. Through language the social actors index and document a conflict or crime: in other words, they provide their own representations of the case, hoping in the meantime that their actions would tilt the case in their favor. But, in so doing, they are planning for symbolic and material compensations, hence they are looking at their economic status once it is all over and they are back to normal life. Our case here reveals some of the economic interests of all protagonists. What the defendant Hilal was attempting to do 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.”[56]


Hilal’s statements (numbering is his own)


A. 1. The immediate deposition (dabt fawrî) [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 there and imposed their will. In principle, as the Damascus cassation court 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 subsequently 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 with the allegation 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 expecting a punishment that could be severe. He was therefore left with two options: (i) a peaceful settlement based on blood money compensation; and (ii) to 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 noted earlier, 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.[57] It remains unclear why Hilal was denied access to a judge, an issue that the court 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 (shawâhid) on their assaults, etc.

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

C. The land of the victim and the witnesses is 2-3 km far from mine, and despite that their sheep only graze over my cultivations with a pretext—the village wall—and it is known that the wall is no good for the sheep to graze, and the intention (ghâya) of the victim and witnesses is to force me out of the farm, from my home and land.

The process of contextualization proceeds even further than in B, as victim and witnesses are lumped together under a single conspiracy theory. But the status of the disputed land is left unexplained here, and it is in another letter (which could have been drafted earlier or later) that Hilal explains how property ownership has shifted since the 1960s: “The [disputed] land was [classified] an agricultural land since 1963 [when the Baath came to power], 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 court 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 (aqârib) of the rifle’s owner came to me and requested that I say that the rifle is mine.

The ownership of the rifle is not important per se, considering that Hilal confessed his crime and there was plenty of evidence that he did it. Ownership of guns, however, is authorized only with a permit, and not having one is a felony. The genuine owner might therefore have had to hastily dispatch his relatives to deny ownership, either because he had no permit himself, or else he did not want to get involved. More importantly, considering that in this tightly controlled society of honor and violence, guns are the most common weapon of crime, and their circulation from one individual to another, from home to home, is in itself a means for consolidating relations and establishing bonds, ownership—like crime—cease to be a private matter: guns “protect” groups as much as they “protect” individuals.


In his cross-examination by an assistant judge the day after the murder, Hilal stated that he purchased the rifle in Lebanon 15 years ago: “I used to go and work there, I purchased the rifle, and brought it with me [to Syria.] Everyone at that time had guns, and I’ve got sheep that I take with me to the eastern region.”

[The rest of the paragraphs were left unnumbered.]

After the incident I went with my wife and son Anwar in the direction of al-Burid, and on the road I passed by the village of Jibb Abyad at the house of X. They told us not to mention the name of the woman [my wife] so that she does not get imprisoned and arrested from justice.

As with the rifle, the decision not to mention his wife’s presence at the murder scene was not his own, but a collective one. Hilal was attempting to shift responsibility from the individual to the collective.

[In the remaining three paragraphs the handwriting changes and the language considerably deteriorates from plain to colloquial Arabic, indicating a likely change in authorship.]

All the inhabitants of my village have seen everything before anyone else, and they’ve seen the distance of the bodies from the door of the house.

Same strategy as before: even the seeing was collective—by all the village inhabitants. Notice that prosecution and court went towards the other end: 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 (‘ashîra), and he might have heard the talk of those present after we had run away.

After having discredited all witnesses, now it is the doctor’s turn. The process of contextualization goes even further with the attempt to indicate that in a milieu where everyone is kin related, and crimes are not individual acts, then how is objective truth possible?

The witnesses are opponents (akhsâm) and the instigators. After the incident one of the witnesses Walid al-Shaykh attempted to kill my son Khalid in Latakia, while others have assaulted my brother in his village and beaten him up, and they’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.


The witnesses’ alleged kin bias was picked up by the defense counsel in one of his memos to the court on August 1995: “Your honorable court, being a court of substance (mahkamat mawdû‘), will notice that it is not permitted to judge by the law and deduct from evidence through bypassing the witnessing of neutral persons (ashkhâs hiyâdiyyûn), while taking into consideration only the statements of the plaintiff and his relatives.” The counsel refrained, however, from contextualizing the case within the broader perspective of the defendant—that of the ongoing feuds between the two families, beginning with his father’s alleged assault and the killing of Ibrahim’s father. The counsel nevertheless kept nailing down the case to its main components: the disputed land, and the victims’ constant trespassing over Hilal’s property, the witnesses kin problem and their contradictory statements, and the state of mind of a defendant who had been with his wife insulted, beaten up, and humiliated by all three victims. The counsel went 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‘tidâ’) 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 is at least how in principle a verbal exchange between speaker and hearer ought to proceed. It is, of course, quite common for speaker and hearer not to “understand” one another—or at least the hearer might understand the speaker only literally, while the symbolic social meanings are lost. More importantly, even routine utterances assume and generate a system of meanings that is made and unmade while people speak and act. For the researcher, such assumptions and generations of meaning are what social actors typically take-for-granted, and which 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 and answer assume an implicit understanding of the situation at hand, but which is not directly revealed to either speaker or hearer.


Consider as an illustration 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 on 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 fallen 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 in 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 ran away: “When I did run away she was standing with the women.” Whether his description was factually correct or not is beyond our means, but suffice to say that it does 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 in 1995, 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 (tajnîd), 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 ‘aqlî) to the point of idiocy (bi-darajat al-balâha) 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 court that his client be subjected to a medical examination, a request that received the court’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 (tasarrufât salîma)”: 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-mulkiyya al-‘aqliyya) for any person in an hour or in a question. The accused suffers in effect from a brain deficiency (naqs ‘aqlî) to the point of idiocy (li-darajat al-balâha),[58] and if someone is an idiot (ablah) it doesn’t mean that he would be unable to utter a single true or sound word, which 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 (salâmat malikatuhu al-‘aqliyya), and check whether he does not suffer from any mental or psychological illness (marad ‘aqlî aw-nafsî). 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 (amrâd 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 of an 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 court’s final ruling in 2000: “The defense has pleaded that his client is not responsible for his actions since he has a mental illness (marad ‘aqlî), based on the fact that the accused Hilal was dismissed from his compulsory military service [in 1965] for his idiocy (balâhatihi). 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 ‘aqlî), 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 leads to a constructed artifact whose assumptions are seldom explicitly stated as such. Witness, for instance, 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 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 per se. Harold Garfinkel argued that “A common-sense description is defined by the feature ‘known in common with any bona fide member of the collectivity’ which is attached to all the propositions which compose it.” Basing himself on Alfred Schütz’s phenomenological feature of what is “known in common,” Garfinkel concludes that “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.”[59] 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 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 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, unreflectively relies on such taken-for-granted common stock. A severe incongruity can be induced whenever the social actors are unable to understand the meaning of their actions and the causal links that bind together various disparate spheres—economic, juridical, political and social—of the lifeworld. In the various linguistic situations that we have examined for this case—lawyers memos, investigations, cross-examinations, medical reports, verdicts, and, above all, Hilal’s own writings—the common knowledge, which enabled speaker and hearer to agree or disagree with one another, prepare their strategies, and reach conclusions for the sake of the final verdict, all bear the imprints of the taken-for-granted “subjective constructions of reality.”[60]


If legal theory generally looks at the rules of law as the most important component of any system of justice, it is presumably because they constitute the “theory” out of which other elements (e.g. procedures and fact finding) are constructed. Judges are therefore supposed to “apply” the rules of law, meaning that they have to “find” the adequate rule for each case, and whenever no such rule is available ready at hand (or no clear precedents are available)—for instance, in what Ronald Dworkin labels as “hard” cases[61]—judges may “interpret” the rules accordingly, in order to extract, through analogy and judicial reasoning, the corresponding rule. Consequently, if much attention has been devoted to the rules, their interpretation, and procedures, it is because they presumably constitute the core of a system of justice; and if the legal cases tend to receive so little attention, it’s because they’re perceived as an “application” to the rules of law.


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


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





Austin, J.L., How to Do Things With Words (Oxford University Press, 1962, 1975).


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


Durkheim, Émile, Leçons de sociologie (Paris: Presses Universitaires de France, collection Quadrige, 1997[1950]).


Dulong, Renaud, Le témoin oculaire (Paris: Éditions de l’École des Hautes Études en Sciences Sociales, 1998).


Dupret, Baudouin, “Intention in Action: A pragmatic Approach to Criminal Characterization in an Egyptian Context,” in Standing Trial: Law and the Person in the Modern Middle East (London: I.B. Tauris, 2004), 196-230.


Dworkin, Ronald, Law’s Empire (Belknap Press, 1988).


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, edited by Daniel Defert and François Ewald (Paris: Gallimard, 1994), 443-64.


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


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


Latour, Bruno, “Why Has Critique Run Out of Steam? From Matters of Fact to Matters of Concern,” Critical Inquiry, vol. 30, nº2, Winter 2004, 225-248.


Majmû‘at ahkâm al-naqd fî qânûn usûl al-muhâkamât al-jizâ’iyya min ‘âm 1988 hatta 2001 A.D., ‘Abdul-Qadir Jarallah al-Alusi, ed., 4 vol. (Damascus: al-Maktaba al-Qanuniyya, 2002).


Posner, Eric, Law and Social Norms (Harvard University Press, 2000).


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


Ricœur, Paul, La mémoire, l’histoire, l’oubli (Paris: Seuil, 2000).


Skinner, Quentin, Visions of Politics, Vol. I: Regarding Method (Cambridge University Press, 2002).


Tamanaha, Brian Z., Realistic Socio-Legal Theory: pragmatism and a social theory of law (Oxford: Clarendon Press, 1977).


‘Utri, Mamduh, Qânûn al-‘Uqûbât (Damascus: Mu’assasat al-Nuri, 2003).


Weisberg, Robert, “Norms and Criminal Law, and the Norms of Criminal Law Scholarship,” The Journal of Criminal Law and Criminology, 93, nº2/3, Winter/Spring 2003, 467-591.


[1] For a thoroughly critical evaluation of the law-and norms-literature, see Robert Weisberg, “Norms and Criminal Law, and the Norms of Criminal Law Scholarship,” The Journal of Criminal Law and Criminology, 93, nº2/3, Winter/Spring 2003, 467-591.

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

[3] Posner, Problems, 361.

[4] Such preoccupations are expressed differently across the wide spectrum of legal theory. On the one hand stand the likes of Eric Posner, Law and Social Norms (Harvard University Press, 2000), whose main interest lies in detecting the social and economic reasons that may push actors to switch back and forth between the commonly accepted social norms and the legal rules. On the other hand, a social theory of law as propounded by Brian Z. Tamanaha, Realistic Socio-Legal Theory: pragmatism and a social theory of law (Oxford: Clarendon Press, 1977), represents the kind of approach derived from symbolic interactionism, with added touches from the interpretivist concept of practice.

[5] Bruno Latour, “Why Has Critique Run Out of Steam? From Matters of Fact to Matters of Concern,” Critical Inquiry, vol. 30, nº2, Winter 2004, 225-248.

[6] Idlib is a city of roughly 200,000 inhabitants located in the north of Syria, 50 km close to the Turkish border point at Bab al-Hawa. The Jinayat are the criminal courts in Syria. As Idlib is the capital city of its Muhafaza (province), all criminal cases in neighboring towns, villages and farms, are handled by the Idlib police and Jinayat. Inmates also serve their sentences at the Idlib main prison.

[7] Idlib Jinayat 271/1994; final ruling 11/2000.

[8] Used interchangeably with ‘Aql in all documents.

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

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

[11] They also do not seem to have been taped in the first place.

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

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

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

[15] Punctuation not in the original Arabic.

[16] On the performative side of speech acts, see J.L. Austin, How to Do Things With Words (Oxford University Press, 1962, 1975). On the benefits of applying speech-act theory to historical discourse, see Quentin Skinner, Visions of Politics, Vol. I: Regarding Method (Cambridge University Press, 2002).

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

[18] Used interchangeably with ‘Akal.

[19] Paul Ricœur, La mémoire, l’histoire, l’oubli (Paris: Seuil, 2000), 203ff.

[20] The notion of cross-examination is taken here very formally, considering that “in the system of civil law, the very principle of cross-examination does not really exist”; see Baudouin Dupret, “Intention in Action: A pragmatic Approach to Criminal Characterization in an Egyptian Context,” in Standing Trial: Law and the Person in the Modern Middle East (London: I.B. Tauris, 2004), 196-230.

[21] Based on a hundred closely examined cases from the Idlib and Aleppo Jinayat courts in the 1980s and 1990s.

[22] Interviewed in Aleppo on 17 June 2004.

[23] Majmû‘at ahkâm al-naqd fî qânûn usûl al-muhâkamât al-jizâ’iyya min ‘âm 1988 hatta 2001 A.D., ‘Abdul-Qadir Jarallah al-Alusi, ed., 4 vol. (Damascus: al-Maktaba al-Qanuniyya, 2002).

[24] Majmû‘at, 1:580.

[25] Majmû‘at, 1:613.

[26] Majmû‘at, 1:625.

[27] Based on Renaud Dulong, Le témoin oculaire (Paris: Éditions de l’École des Hautes Études en Sciences Sociales, 1998).

[28] It is, indeed, that relationship to power that individualizes, which in the case of a criminal investigation implies processing information on a one-to-one basis, while assuming that “actors” are “individuals” endowed with a consciousness of their own, and are hence responsible for their own actions. But unless such actions are represented in public and become a matter of public concern—for instance, in a Habermasian public sphere—the roots of “individualism” will remain muted and subjugated to the larger “group”: see Michel Foucault, “L’évolution de la notion d’« individu dangereux » dans la psychiatrie légale du XIXe siècle,” in Dits et écrits, 1954-1988, III: 1976-1979, edited by Daniel Defert and François Ewald (Paris: Gallimard, 1994), 443-64.

[29] When it comes to homicide investigations, I was struck of the differences  between Aleppo and Idlib. Thus, while the Aleppo rulings tend to be much shorter than those of Idlib, they are also generally based on less systematic fact finding, all of which could be attributed to the visibility of kin relations in a small community like Idlib: police, investigators and judges, will all have to be more “convincing” in the way they are proceeding with a case, simply because of their own links with the various groups in their community.

[30] Ricœur, La mémoire, 203.

[31] Used interchangeably with ‘Aql in all documents.

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

[33] Émile Durkheim, Leçons de sociologie (Paris: Presses Universitaires de France, collection Quadrige, 1997[1950]).

[34] The accused are normally charged with the so-called military fees whenever expertise from the military is needed.

[35] Mamduh ‘Utri, Qânûn al-‘Uqûbât (Damascus: Mu’assasat al-Nuri, 2003), 197-8.

[36] Note the abrupt change from third- to first-person, from the paraphrased statements to the presumed direct quotes.

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

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

[39] ‘Akal was a “suspect” for having allegedly used force against both the accused and his son.

[40] Since the lawyer’s heirs kindly authorized me access to the folder’s case in 2004 (the lawyer in question died in 2001, a year after the verdict), only some of the original letters that were included in the file are quoted here. It remains uncertain, however, whether the defense forwarded them to the prosecution or whether they were later included in the court’s file. In a number of cases, I have seen letters of inmates originally addressed to either the prosecution or defense, or to the criminal 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 is up to the former to decide what to include or exclude from their presentation of the case.

[41] Punctuation not in the original Arabic.

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

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

[44] Anwar was a minor at the time.

[45] Observe the passive form (shift of agency).

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

[47] Both the police and the court’s 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?

[48] Nuri’s identity and relation to the protagonists was not revealed.

[49] Literally, the witnesses of public right, or those that were summoned by the prosecution, because the victims are not directly parties to the trial: it is indeed the prosecution in its quality of protector of the society’s rights.

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

[51] The Syrian penal code, which was enacted in 1949 during the brief dictatorship of Husni al-Za‘im, and which is based on the modern Egyptian and French codes, is entirely modern and secular, and hence does not borrow much from the sharî‘a.

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

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

[54] 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.

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

[56] Punctuation added in the translation below.

[57] Based on a sample of 100 cases.

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

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

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

[61] Ronald Dworkin, Law’s Empire (Belknap Press, 1988).