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