Truth, Intentionality and Evidence: Anthropological Approaches to Crime [1 ed.] 1138646091, 9781138646094

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Truth, Intentionality and Evidence

This book provides an anthropological exploration of the ways in which crime is perceived and defined, focusing on notions of truth, intentionality and evidence. The chapters contain rich ethnographic case studies drawn from work in the Middle East, Africa, India, Mexico and Europe. A variety of instances are discussed, from court proceedings, police reports and newspapers to moments of conflict resolution and reconciliation. Through analysis of this material, the authors reflect on how perception of an act as a crime can differ and how the definition of crime may not be shared by all societies. The approach takes into consideration local standards as well as social, legal and contextual constraints. Yazid Ben Hounet is a research fellow in anthropology at the CNRS (Centre National de Recherche Scientifique / French National Research Center for Scientific Research). He is also a member of the Laboratoire d’Anthropologie Sociale (CNRS/Collège de France/EHESS) and of the Centre Jacques Berque. Deborah Puccio-Den is a researcher at the French National Center for Scientific Research (CNRS), and she works at LAIOS-IIAC, a research laboratory of the EHESS (Ecole des Hautes Etudes en Sciences Sociales), France.

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Truth, Intentionality and Evidence Anthropological Approaches to Crime Edited by Yazid Ben Hounet and Deborah Puccio-Den

First published 2017 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 711 Third Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2017 selection and editorial matter, Yazid Ben Hounet and Deborah Puccio-Den; individual chapters, the contributors The right of Yazid Ben Hounet and Deborah Puccio-Den to be identified as the authors of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data A catalog record for this book has been requested ISBN: 978-1-138-64609-4 (hbk) ISBN: 978-1-315-62774-8 (ebk) Typeset in Sabon by Apex CoVantage, LLC This book comes out of a January 2015 workshop held at the Centre Jacques Berque (Rabat), with the support of the Wenner Gren Foundation and of the Laboratoire d’Anthropologie Sociale (Paris).

Contents

List of figures List of contributors Foreword

vii ix xi

BAUDOUIN DUPRET

Introduction: crime: truth, intentionality and evidence

1

YAZID BEN HOUNET AND DEBORAH PUCCIO-DEN

1 Questioning the truth: ideals of justice and trial techniques in India

10

DANIELA BERTI AND GILLES TARABOUT

2 Evidence, certainty, and doubt: judge’s knowledge in Iranian criminal sanctioning

28

ARZOO OSANLOO

3 The (ir)relevance of self-avowals in the interpretation of criminal evidence

46

ZOUHAIR GHAZZAL

4 On intentionality in Mafia crimes

63

DEBORAH PUCCIO-DEN

5 Crime, intentionality and blood money in Algeria and Sudan

78

YAZID BEN HOUNET

6 “To lose oneself while acting”: crime and forgiveness in the Mixe highlands of Oaxaca, Mexico PERIG PITROU

93

vi Contents 7 Translating evidentiary practices and technologies of truth finding: oath taking as witness testimony in plural legal configurations in rural Morocco

112

BERTRAM TURNER

8 A faded narrative: reconstruction and restitution in medico-legal expertise in India

130

FABIEN PROVOST

9 Technologies of truth and access to justice: becoming an apartheid victim in contemporary South Africa

147

LILIANE UMUBYEYI

Index

163

Figures

3.1 3.2 9.1

General theory of the modern spectator 58 The spectator in relation to a crime scene 58 Khulumani Support Group Draft Community Needs Assessment Sample152

Contributors

Daniela Berti, Centre d’Etudes Himalayennes, CNRS, France Baudouin Dupret, École des hautes études en sciences sociales, CNRS, France Zouhair Ghazzal, Loyola University, Chicago, USA Arzoo Osanloo, University of Washington, USA Perig Pitrou, Laboratoire d’anthropologie sociale, CNRS, France Fabien Provost, PhD candidate, LESC, France Gilles Tarabout, Laboratoire d’Ethnologie et de Sociologie Comparative, CNRS, France Bertram Turner, Max Planck Institut for Social Anthropology, Germany Liliane Umubyeyi, Institut des sciences sociales du politique, ENS Cachan, France

Foreword

In the introduction to the volume Law at Work (Dupret et al., 2015), four major themes are identified which help clarify the specific contributions of praxiology to the study of law. The first theme concerns the relationship between law in action and law on the books. Law as a social phenomenon cannot be reduced to legal codes (law on the books). However, it would be mistaken to ignore how formal statutes, case law and rules of evidence are integral to the practice of law. The Platonist idea that formally codified laws are mere appearances, and that the social scientist’s task is to uncover the reality lying behind such appearances, confounds analysis because it fails to take into account how formal law is taken up in practice. If we were to oppose theory to practice and legal provisions to “living law”, we would fail to understand fully the practical uses of law. A more adequate understanding can be gained through the close description of both professionals’ and laypersons’ orientations to, and reifications of, legal categories as they emerge from actual encounters in legal forums in the context of practical casework. The second theme is related to the fact that in most sociolegal studies, scholars address the nature of law but ignore or presuppose the phenomenon of legal practice itself. The synthetic theories they deploy fail to resolve the production of legal practice. This has been called the missing what of sociolegal studies. This failure is not an omission so much as a concomitant of a pursuit of general models and assessments that aim to comprehend the fundamental significance of the law and to compare and critically examine legal institutions. As a result, they make little or no attempt to investigate the specific competencies through which lawyers collaboratively produce and coordinate legal actions in particular circumstances. It means that “sociologists tend to describe various ‘social’ influences on and implications of the growth and development of legal institutions while taking for granted that lawyers write briefs, present cases, interrogate witnesses, and engage in legal reasoning” (Lynch, 1993, 114). Often, social science research devotes no attention to the “here and now” dimension of activity, and by so doing it obscures the necessarily situated character of such activity. To paraphrase Michael Moerman (1974: 68), sociolegal studies would do better to describe

xii Foreword and analyze how legal categories are used rather than treating them as selfevident prescriptions and proscriptions for action. The third theme is related to the opposition between local orders of practice and “hyper-explanations”. “Hyper-explanations” deploy abstract concepts that have relevance to any and all social institutions and social actions. Examples include stages of development in theories of modernity or theories of power and domination. Legal institutions and legal authority often have a central place in such explanations, but the specific practices that constitute legal activities tend to be subordinated to overarching concepts defined by one or another theory of the constitution of society. Legal work involves practical and daily activity embedded in local environments – environments that both constrain what can be achieved in particular situations and also provide resources for accomplishing such work. Travers (1997) speaks of a descriptive gap, noting that while numerous studies have characterized courtroom activities through ethnographic and related methods, very few have attended closely to the moment-to-moment conduct of such activities. A consequence of this gap is that researchers can remain insensitive to legal work as it is produced and understood by its practitioners. The praxiological alternative – and this is the fourth theme – is to describe the means of production and reproduction, intelligibility and understanding, structure and public manifestation of legal practices and of the diverse activities linked to them. Thus, rather than positing the existence of racial, sexual, psychological or social inequalities associated with law, praxiological studies focus on seeing how activities are organized and how people orient to structures of such activities that are intelligible for the most part in an unproblematic way. The sociological hypothesis that internalized norms provoke “automatic”, seemingly “spontaneous”, behavior does not account for the way actors perceive and interpret the lifeworld, recognize its familiar features and normatively order their reactions to such features, nor does it explain how rules govern concrete interactions. Accordingly, social facts do not impose themselves on individuals as objective realities but instead are organized as practical achievements. Between a rule, or an instruction, or a social norm, and its implementation in action, an immense domain of contingency opens up so that such implementation is never a pure application or simple imitation of pre-established models. If and when studying legal norms in a praxiological way, some epistemic themes become important (Dupret, 2011). These themes are those which deal with the issue of who a person is, what can be considered as a cause or an intent and what counts as evidence supporting a case. These themes have been called by Michael Lynch (1993) “epistopics”, a term by which he means the epistemic resources people use in their actual courses of action to make sense of a particular situation and for the practical purposes of the particular setting in which they act. Epistopics can be specifically legal. In criminal matters, for instance, in the civil-law system, there is no way to prosecute entities which are not characterized as “natural persons”. This is how, in a case I worked on in Egypt, the judge dismissed the claim of an

Foreword  xiii offender who pretended to have been possessed by spirits which were acting on his behalf. In criminal law again, in various legal traditions, the penalty will hugely vary according to the intention attributed to the agent of a crime, whether he or she acted voluntarily or involuntarily; thus the inquiry into the ways in which something can be qualified as intentional or not is of first importance. As for causes, one can bear in mind the famous volume authored by Herbert Hart and Tony Honoré, Causation in the Law (1985), which nicely shows how our concept of causation is organized around the idea of a chain relating an event and its origin. A praxiological dealing with these epistemic themes is perspectival in the sense of observing and describing how members of a community of people engaged in specific actions orient to them in the course of their ordinary, daily, routine activities. It is not about constructing big theories concerning the concepts of the person, intention, cause, evidence and the like. It is about the re-specification of these issues in terms of practical problems that are faced, tackled and solved in more or less empirical ways by flesh-and-blood persons engaged in the accomplishment of their usual business. It means therefore addressing the “missing-what” of most studies on law and society, which are more interested in using these themes as resources for the painting of grand anthropological pictures than in addressing them in their own rights as topics in and for themselves (see Dupret, 2006). This volume is an attempt at working out the injunction of looking at epistemic themes in legal settings as they unfold in action. The perspectives of its many contributions are not always praxiological, which leaves space for further studies. But they all contribute to a better grasp of the situated character of such epistopics, to the acknowledgement of the tremendous importance of their understanding in the concreteness of their ordinary usages and to the delineating of a grammar of words, categories and meanings used to perform actions understood as legal. Baudouin Dupret

References Dupret, B. 2006. Droit et sciences sociales. Paris: Armand Colin. Dupret, B. 2011. Adjudication in action: An ethnomethodology of law, morality and justice. Farnham: Ashgate. Dupret, B., Lynch, M. and Berard, T. 2015. Law at work: Studies in legal ethnomethods. Oxford: Oxford University Press. Hart, H. and Honoré, T. 1985. Causation in the law. Oxford: Clarendon Press. Lynch, M. 1993. Scientific practice and ordinary action: Ethnomethodology and social studies of science. Cambridge: Cambridge University Press. Moerman, M. 1974. Talking culture: Ethnography and conversation analysis. Cambridge: Cambridge University Press. Travers, M. 1997. The reality of law: Work and talk in a firm of criminal lawyers. Farnham: Ashgate.

Introduction Crime: Truth, intentionality and evidence Yazid Ben Hounet and Deborah Puccio-Den

To view “crime” from an anthropological perspective, given the wide expanse – India, South Africa, Europe, Muslim lands, and so on – covered by the chapters herein,1 we must start by defining this word in relation to native categories and local classifications, whether state law, customs or other sources of norms (notably religious). All these normative systems, in certain configurations, compete with each other and spawn conflict about how to characterize crime. If crime is a litmus test of social and political relations and, too, of the moral values in force in a given society, questions arise, as Isaac Schapera (1972) has pointed out, about the legitimate authority for qualifying an act as “criminal” and differentiating between acts that, though infringing on widely accepted norms, do not fall under the sanction of the law (if the latter exists). How do we determine the tipping point when more or less tolerated behaviors – even hidden from view or repressed into silence – become illegal and liable in the judicial sphere (Lemieux, 2007)? What are the conditions for this tipping? What changes in the “regime of action” and of speech are necessary for this social transformation? Recent research in social anthropology has not directly addressed these key questions about the characterization of an act as criminal and the legitimacy of doing so. Classical studies in the anthropology of law have concentrated on the means and processes (Gluckman, 1965; Moore, 1978) of “dispute settlement” and differentiated between negotiation and arbitration (Gulliver, 1969) when a third party (the arbitrator) is present.2 A recent current of research has focused on “legal consciousness” (Merry, 1990). The chapters herein draw, in part and to a variable degree depending on the author, from these studies while pointing to publications centered on the concepts of truth, intentionality and evidence. This book seeks to improve our understanding of crime by dwelling on its cognitive dimensions. Rather than focusing on parties in the judicial and parajudicial spheres (judges, attorneys, police, etc.) or on the means used (trials, mediation, etc.),3 we have turned attention to truth, intentionality and evidence – concepts that, implying cognitive representations, legal and moral norms, judicial procedures and so on are variously invoked depending on the culture and social context. An overview of anthropological approaches to crime will show how this book intends to follow up on,

2  Yazid Ben Hounet and Deborah Puccio-Den and move beyond, the usual questions raised about criminal acts in social anthropology.

Crime and social anthropology Crime, a classical theme in legal anthropology, has been insufficiently studied in comparison with topics such as family law, property rights or the relation between customs and law. In a chapter in Ancient Law devoted to the origins of criminal law, Henry Sumner Maine (2012 [1861]) made the distinction between “crime” (an offense against the state or community) and “delict” (an offense against the individual) and then argued that the first codes (in particular Roman and Germanic) purposed more to settle delicts (wrongs or torts) than to elucidate crimes, which were punished by summary sanctions. For Émile Durkheim (1893), crime is an “act that offends states, strong and defined, of the collective consciousness”; sanctions are mainly intended for law-abiding citizens. In his account of sanctions for crimes among Trobriand Islanders, Bronislaw Malinowski (1926) defined crime as an act of mistrust of customs. Isaac Schapera’s (1972) chapter on the concept of crime in anthropology has criticized the approaches that consider criminal acts to be subject to a universally agreed-upon disapproval. He pointed out that, for one thing, there are no universal principles of disapproval, and for another, there is often no judicial authority in “primitive societies” and, therefore, no legal system in the strict sense of the word. Concluding that there is no evident definition of crime, he has proposed the minimalist one adopted herein: “A crime is an act, or failure to act, considered punishable by those who are entitled to react in that way” (Schapera, 1972: 390). Whereas the first writings in anthropology emphasized the rationales, forms and meanings of the sanctions for acts deemed criminal, research over the last forty years has mainly analyzed crime as a function or manifestation of broader social processes or relations. From such a perspective, Donald Black (1983) has pointed out that many crimes in contemporary society can be likened to acts of legitimate defense and proposed studying them in terms of social control. Georg Elwert (1999) has analyzed crime as a market of violence with its costs and benefits. For Philip Parnell and Stephanie Kane (2003), crime is a factor in redistributing power. Having also analyzed crimes as exchanges, or transactions, involving violence, several classics in the anthropology of the Mediterranean Basin have sought to understand the “logics” of vengeance (blood feud, vendetta) and honor before and after the perpetration of a crime (among them: Black-Michaud, 1975; Bourdieu, 1965; Jamous, 1981; and Peristiany, 1965). The perspective adopted in the present volume helps us to see crime in its contexts and, above all, to understand how the persons concerned perceive it. We have taken into account Schapera’s insistence on native perceptions of crime. As a consequence, our intent is not to examine the causes and effects of crimes and misdemeanors, the punishments for them or their place in

Crime: truth, intentionality and evidence  3 social and political relations. Instead, we would like to explain how persons involved in investigations, judgments, mediation or arbitration grasp and define acts contextually as crimes, whence the importance of cognitive representations. Recent research has made a critique of criminalization, the process whereby authorities, the media or public come to characterize as criminal certain groups or practices, for example, in the case of organized crime (Schneider and Schneider, 2008). Other studies, in particular Comaroff and Comaroff (2004), have shed light on the contours and implications of the “criminal obsessions” rife in many contemporary societies. Crime has invaded the media; its portrayal and quantification are a part of the processes of defining crime and imposing a social order. Jean and John Comaroff more thoroughly explore these processes by probing the methods of crime detection (in particular, “divinatory detection”) and their socially acceptable “grammars” in South Africa, a country marked by a “metaphysics of disorder”. Beyond detection as a procedure for discovering what is hidden, we would like to describe, through empirical cases, how a definition emerges of the inner truth – the intent – of a criminal act and how it is proved. What elements are deemed to be genuine, conscious, probative? What part do they have in judgment, mediation, arbitration and the perception and characterization of an act as a crime?

Truth, intentionality and evidence Applying anthropology’s theoretical and methodological tools to crime – in contrast with the approaches that, adopted in sociology, political science or history, are well attested in this field4 – is, in and of itself, a potentially innovative action. Observing the criminal nature of an act from the vantage point of intentionality and evidence, and questioning how the truth is tried and tested in the judicial setting or comes into play in rituals, politics and the public arena, call for recognizing several forms of expertise: law, psychiatry, forensic medicine or local (including religious) knowledge (Comaroff and Comaroff, 2004). This places anthropology in a dialectical position with other modes of comprehension of the world and other logical or pragmatic rationalities. In parallel, an inquiry into the establishment of proof (as in the social sciences, mathematics, law, medicine, etc., or by the actors themselves through their cognitive operations and social practices) can make epistemological and pragmatic advances by comparing the truth-seeking procedures used in a given society and “symmetrizing” the competence of researchers and their community with the ordinary knowledge and know-how of social actors.5 In the social sciences, the rules of evidence6 require arguments that, as matters more of interpretation than of irrefutable truth, are often plural, never unequivocal and frequently unfinished, the aim being not necessarily to close a case but to let it open for other, later interventions or for

4  Yazid Ben Hounet and Deborah Puccio-Den other possible explanations. In contrast, law and medicine require another “discursive regime”. Owing to the concrete, immediate effects on the life, fate, health, well-being and happiness of the person facing a judgment or diagnosis, the evidence serving as proof has a performative value and force. Subject to the exigencies of time (a case must be closed, and a diagnosis must be made within a given time), proof is established through stricter procedures than in the social sciences. Nevertheless, as shown herein, these regulated procedures can be (or even have to be) circumvented to attain a higher form of truth – higher because it is human and social, adapted to the complexity of psychological events and social facts. The chapters by Fabien Provost, Gilles Tarabout and Daniela Berti, all three specialists on India, show how psychological intuition, social knowledge, cultural values and local power relations play active parts in the judgments made by magistrates or appraisals written by doctors of law. What we observe is not so much the “making of truth” as the production of several forms of truth that negotiated through different, sometimes conflictive, truth-seeking processes, both put to use medical, legal, political, social and psychiatric know-how (including appraisals by nongovernmental organizations [NGOs]: see the chapter by Liliane Umubyeyi) and mobilize various arrangements and categories of beings. When magistrates, doctors or experts attempt to prove the criminal intent motivating an act, they interact with other persons or groups (witnesses, parties to class action suits, victims’ organizations, etc.). With reference to the actor-network theory developed by Bruno Latour (1991, 2006), this attempt often involves nonhuman actors or agents – weapons, natural forces and social or environmental factors (the chapters by Perig Pitrou and Yazid Ben Hounet) – while allowing alleged offenders the privilege of knowing and being able to tell the truth, the “whole truth”, about their actions, as in Zouhair Ghazzal’s chapter on the handling of confessions by Muslim tribunals in Syria and in Dupret’s inquiry (2011). To describe these procedures as we have tried to do herein, we need, therefore, to reconstruct the sophisticated series of operations that weave ties among beings, their actions and the entities (objects, gods, natural phenomena, etc.) implicated in these actions. Step by step, we come closer to an ontological explanation germane to the society’s essence: what constitutes the society as such through the intertwining of individual and social relations, what enables it to give an explanation of and to itself.

Description, interpretation and translation The questions of criminal intent and truth can be approached through “translation”, to borrow Akrich, Callon and Latour’s (2006: 12–13) definition: “all the negotiations, intrigues, calculations, acts of persuasion and violence whereby an actor or force takes, or causes to be conferred upon itself, the authority to speak or act on behalf of another actor or force”. Accordingly, we need to study the successive interactions whereby individuals or groups

Crime: truth, intentionality and evidence  5 pose as the “spokesperson” for others. How do they impose transformations on the society in view of its ontological stabilization? This process might occasion protest or controversy, deemed to be a “dissidence” that disputes the spokesperson’s legitimacy (Callon, 1986). Exactly like scientific truths,7 judicial truths come out of processes characterized by uncertainty, discussion and differences of opinion. Several chapters herein describe the trial and error, perplexity and complications in mustering evidence and establishing proof for judicial propositions, sentences or verdicts. When the goal is to prove the intent to commit a crime, competing discourses are heard: not only the affirmations of the alleged offender in contrast with the declarations of victims but also the legal propositions formulated as a matter of common sense. How do we establish the legitimacy of one discourse compared with another? Beyond the relation between act and intent, judicial forms of the production of truth use inference as a cognitive operation and social skill. Which causal explanations are retained as relevant, and by whom? How do we determine the appropriate chain of consequences, the right linkage, the crucial piece of evidence? A question, even more vast, then arises: how do we describe the action? Elizabeth Anscombe (1958) pointed out that intention, instead of being a private event of a psychological sort, a preliminary to the act, is a discursive operation implying social practices and rules. According to Quine (1960), shared social norms are used to assign reasons and intentions to an action. These norms, the truth being indexed on them, ascertain the coherence between beliefs and action that is fundamental for explanation or interpretation (Davidson, 2001). Under this conception, the agent is a reflexive subject, part of a community of reflexive subjects (or “interpreters”). Inquiring into the intention or reason for an action is a hermeneutic, interactive operation for assigning meaning. This places us in the realm of the agent’s explanations and rationalizations for justifying what he or she did – justifications implying beliefs, desires, moral conceptions, aesthetic principles, prejudices, social conventions and cultural values that are activated under certain circumstances to qualify an act as an action accomplished “for a certain reason”, that is, intentionally. This “reason” leads to reformulating the description of the act. A single act can be described from different angles, and this is exactly what happens in court. But are such reasons the actual causes of the action? Are they not always ex post facto justifications that do not tell us much about the chaining of mental states and physical processes that cause one act to be performed instead of another? Whereas magistrates, experts and the police have the task of inquiring into the causes and motives of a criminal act, we as social scientists, have the assignment of following the successive (material and cognitive) operations that lead to forming a judgment. Moral questions crop up, even for legal practitioners (judges or jurists), who bearing the burden of proof even as they are required to find a “psychological” truth, become genuine philosophers (Deborah Puccio-Den’s chapter). Do intent and act share the same time scale? Are they present together or separated by

6  Yazid Ben Hounet and Deborah Puccio-Den a time differential that makes intent the logical antecedent of the act? Can the one be reduced to the other or not? Are intentions events of the same nature as actions (Davidson, 2008)? Both the social scientist and the magistrate necessarily intervene after the event – after the criminal act. What guarantees that their retrospective constructions match the truth? For this to happen, it would be necessary to postulate that what actors say about their actions coincides with what they believe about them. Otherwise, these constructions should not be qualified as ad hoc rationalizations, as a disclosure of hidden reasons; instead, they represent an imposture, a lie for dissimulating the actual linkage between act and intent to evoke other, more respectable, reasons less likely to incur a social or judicial sanction. A methodological question related to the concept of truth thus crops up. How much credit do we grant to a speech act about one’s self (a confession) – a reconstruction by the person of his or her acts under interrogation – that might have been formulated under conditions of (or close to) coercion, where the accused, preoccupied with obtaining a remission, may even have kept silent if that is the best defense strategy? One method researchers adopt is to obtain direct access to the sources and pay close attention to contextualization. The authors herein have tried to apply this method. The anthropologist does not, of course, show an interest so much in the truth as in the techniques used to negotiate the truth (Komter, 1998: 129) and the conditions underlying its production: the confrontation of different interpretations in the courtroom or other places where the truth is made (police offices, forensic laboratories, etc.) and the conditions for averring one of several interpretations (Arzoo Osanloo’s chapter). Although not all these versions are true, they do at least seem plausible, plausibility being indispensable to their admissibility in a public trial. Given that it might not be in the defendant’s interest to tell the “whole truth”, what steps lead from plausibility to truth? As Martha Komter’s (1998) analysis of the dilemmas and setbacks experienced by magistrates who judged extremely violent crimes in the Netherlands has shown, the truth is not something “already there” to be revealed by the accused or discovered by the judge; instead, it is the outcome of negotiations and interactions during the performance of justice. These interactions are not just explicitly based on rational arguments alone; they also appeal to what is socially implicit (Fabien Provost’s chapter), to local norms (the illuminating chapter by Gilles Tarabout and Daniela Berti) or to the resources for argumentation used in everyday life. The actors rely on a common, shared stock of knowledge and aptitudes that help them find their bearings in the world and interpret ordinary events (Garfinkel, 1967). But what if judges and the accused do not share the same means for thinking and talking about the social and moral spheres, about torts, crimes and sanctions? Adjustments are continually made to bridge the gap between these two spheres (which are opposite in their essence), as happens in local contexts where a plurality of norms generates tension between different normative and legal systems. Besides the chapters by Zouhair Ghazzal,

Crime: truth, intentionality and evidence  7 Bertram Turner and Yazid Ben Hounet, we might mention the confrontation between Mafia norms and the state justice system during the trial of Mafiosi (analyzed by Deborah Puccio-Den) or between the Truth and Reconciliation Commission and the Khulumani Support Group (in apartheid-related crimes in South Africa (in Liliane Umubyeyi’s chapter). The foregoing comments portray the truth as being piecemeal, complicated and liable to reversal not just during the trial but also through the dialectics between what happens in the courtroom and outside (where several versions of the facts coexist) as well as during the various phases of judgment or detection (by state, customary or ritual authorities). As anthropologists, we must move among several circles (judicial, medical, and religious) and institutions (from the village council to the courthouse) and, therefore, use fieldwork techniques adapted to a plurality of sites. Although the words of actors, whether judges or criminals, must come under critical examination, we should not see criminals as persons motivated by their personal interests alone. We must accredit them with a sense of what is true and just, with indigenous knowledge and moral skills (Boltanski, 1991) that make them subjects endowed with reflexivity. This truth about one’s self and one’s actions does not come (as we have come to see herein) out of introspection but, instead, results from a social, political and legal construction. These chapters seek to shed light on this process of establishing the truth. Nonetheless, the fuzziness of the relation between action and intentionality, which affects whole sectors of human activities, including, besides criminal acts, rites and actions performed under orders (Humphrey and Laidlaw, 1994), forces us to improve upon our paradigm of the agent as a reflexive subject.

Notes 1 The contributors to the present volume attended the colloquium “Truth, intentionality and evidence: Anthropological approaches to crime and tort”, organized by Yazid Ben Hounet, Baudouin Dupret and Deborah Puccio-Den at the Centre Jacques Berque in Rabat on January 29–30, 2015. Among the scientific projects in synergy with this book’s renewal of a classical theme in legal anthropology, we might mention the creation of a module “Introduction to the anthropology of law” at the Ecole des Hautes Etudes en Sciences Sociales (EHESS, Paris), coordinated by Yazid Ben Hounet; and likewise at the EHESS, the Interdisciplinary Research Program “Terrains du droit” and its roundtables, in particular: “La responsabilité: Action et acteurs”, organized by Françoise Briegel, Simona Cerruti and Deborah Puccio-Den in April 2014; and “Action et responsabilité”, organized by Simona Cerutti and Deborah Puccio-Den in April 2016. Mention should also be made of the colloquium of the Association Française des Sciences Sociales des Religions (AFSR), “Religion, justice et réconciliation”, organized by Yazid Ben Hounet, Sandrine Lefranc and Deborah Puccio-Den in February 2012. This translation has been funded by Laboratoire d’Excellence Tepsis, EHESS (reference ANR-11-LABX-0067). The French version of this text was translated into English by Noal Mellott (Paris). 2  For an overview of approaches via legal anthropology, see Pirie (2013). 3 On the judicial sphere, see Allard et al. (2004); on the means used, Codaccioni, Puccio-Den and Roussel (2014).

8  Yazid Ben Hounet and Deborah Puccio-Den 4 For instance, the research on crime conducted by members of CLERSE (CNRSUniversity of Lille) and CESDIP (CNRS-University of Versailles-Saint Quentin). 5 “Symmetrization” is one of the methodological and epistemological requirements in pragmatic sociology (Barthe et al., 2013: 184–190). 6 See the special issues of Communications (2009) 84, Figures de la preuve, and Genèse (2009) 74, Faire la preuve. 7 For Bruno Latour (2004), the “theory of translation” is grounded on the formation of scientific truths. The formulation of judicial statements has also attracted this sociologist’s attention, in particular in his study of the French Conseil d’État. In general, he has concentrated on truth-seeking procedures in modern societies.

Bibliography Akrich, M., Callon, M. and Latour, B. 2006. Sociologie de la traduction: Textes fondateurs. Paris: Presses des Mines. Allard, J., Corten, O., Falkowska, M., Lefebvre, V. and Naftali, P. (eds.). 2004. La vérité en procès: Les juges et la vérité politique. Paris: LGDJ. Anscombe, E. 1958. Intention. Oxford: Blackwell. Barthe, Y., de Blic, D., Heurtin, J.P., Lagneau, É., Lemieux, C., Linhardt, D., de Bellaing, C.M., Rémy, C. and Trom, D. 2013. “Sociologie pragmatique: mode d’emploi.” A special issue of Politix; Revue des sciences sociales du politique 26(103): 175–204. Black, D. 1983. “Crime as social control.” American Sociological Review 48(1): 34–45. Black-Michaud, J. 1975. Cohesive force: Feud in the Mediterranean and the Middle East. Oxford: Blackwell. Boltanski, L. 1991. L’amour et la justice comme compétences: Trois essais de sociologie de l’action. Paris: Métailié. Bourdieu, P. 1965. “The sentiment of honour in Kabyle society” in J.G. Peristiany (ed.), Honour and shame: The values of Mediterranean society. London: Weidenfeld and Nicholson, 191–241. Callon, M. 1986. “Éléments pour une sociologie de la traduction: La domestication des coquilles Saint-Jacques et des marins pêcheurs dans la baie de Saint-Brieuc.” L’Année sociologique 36: 169–208. Codaccioni, V., Puccio-Den, D. and Roussel, V. (eds.). 2014. “Des usages politiques de la forme procès.” A special issue of Droit et société 89. Comaroff, J. and Comaroff, J. 2004. “Criminal obsessions, after Foucault: Postcoloniality, policing, and the metaphysics of disorder.” Critical Inquiry 30(4): 800–824. Davidson, D. 2001. Inquiries into truth and interpretation. Oxford: Oxford University Press. Davidson, D. 2008. Actions et événements (translated by Pascal Engel). Paris: Presses Universitaires de France. [Essays on actions and events, Oxford: Oxford University Press, 1980.] Dupret, B. 2011. Practices of truth: An ethnomethodological inquiry into Arab contexts. Amsterdam: John Benjamins. Durkheim, E. 1893. De la division du travail social. Paris: Félix Alcan. Reprinted Paris: Presses Universitaires de France. Elwert, G. 1999. “Markets of violence” in G. Elwert, S. Feuchtwang and D. Neubert (eds.), Dynamics of violence: Processes of escalation and de-escalation in violent group conflicts. Berlin: Duncker & Humblot, 85–102.

Crime: truth, intentionality and evidence  9 Garfinkel, H. 1967. Studies on ethnomethodology. Englewood Cliffs, NJ: Prentice-Hall. Gluckman, M. 1965. The ideas in Barotse jurisprudence. Manchester: Manchester University Press. Gulliver, P.H., 1969. “Introduction” and “Dispute settlement without courts: The Ndendeuli of southern Tanzania” in L. Nader (ed.), Law in culture and society, Berkeley and Los Angeles: University of California Press, 11–23 and 24–68. Humphrey, C. and Laidlaw, J. 1994. The archetypal actions of ritual: A theory of ritual illustrated by the Jain rite of worship. Oxford: Clarendon Press. Jamous, R. 1981. Honneur et baraka: Les structures sociales traditionnelles dans le Rif. Paris: Maison des Sciences de l’Homme, Cambridge University Press. Komter, M. 1998. Dilemmas in the courtroom: A study of trials of violent crime in the Netherlands. Mahwah: Lawrence Erlbaum Associates. Latour, B. 1991. Nous n’avons jamais été modernes. Paris: La Découverte. Latour, B. 2004. La fabrique du droit, une ethnographie du Conseil d’État. Paris: La Découverte. Latour, B. 2006. Changer de société, refaire de la sociologie. Paris: La Découverte. Lemieux, C. 2007. “L’accusation tolérante: Remarques sur les rapports entre commérage, scandale et affaire” in L. Boltanski, E. Claverie, N. Offenstadt and S. Van Damme (eds.), Affaires, scandales et grandes causes: De Socrate à Pinochet. Paris: Stock, 367–394. Maine, H.S. 2012 [1861]. Ancient law, its connection with the early history of society and its relation to modern ideas. Cambridge: Cambridge University Press. Malinowski, B. 1926. Crime and custom in savage society. London: Routledge and Kegan. Merry, S.E. 1990. Getting justice and getting even: Legal consciousness among working-class Americans. Chicago: University of Chicago Press. Moore, S.F. 1978. Law as process: An anthropological approach. London and Boston: Routledge and Kegan Paul. Parnell, P.C. and Kane, S.C. (eds.). 2003. Crime’s power, anthropologists and the ethnography of crime. New York: Palgrave Macmillan. Peristiany, J.G. (ed.). 1965. Honour and shame: The values of Mediterranean society. London: Weidenfeld and Nicholson. Pirie, F. 2013. The anthropology of law. Oxford: Oxford University Press. Quine, W. 1960. Word and object. Cambridge, MA: MIT Press. Schapera, I. 1972. “Some anthropological concept of ‘crime’: The Hobhouse memorial lecture.” British Journal of Sociology 23(4): 381–394. Schneider, J. and Schneider, P. 2008. “Anthropology of crime and criminalisation.” Annual Review of Anthropology 37: 351–375.

1 Questioning the truth Ideals of justice and trial techniques in India Daniela Berti and Gilles Tarabout

‘Justice resides in truth alone, and there is no happiness apart from justice.’ – (E. Zola, Truth, 1903 [transl. E.A. Vizetelly])

This paper is about the discourses on the notion of truth that are held in the context of criminal cases in India. While the relationship between ‘justice’ and ‘truth’ is a core issue in the philosophy of law,1 the present contribution is much more limited in its purpose and merely aims at illustrating how, in India, discourses and practices concerning truth are involved in the judicial process or projected onto it. It is therefore about understanding a social reality, not about developing a legal theory. We do this by successively adopting three main perspectives. The first of these corresponds to discourses that set Truth, in an absolute sense, as the goal to be reached by the judicial process; this ideal is expressed in the higher courts (High Courts of the states and Supreme Court of India) when they wish to underline the ethics of justice (compare Ho, 2008: 46ff.). A second discourse, more pragmatic, concerns the actual techniques for eliciting a judicial truth.2 Trial judges, in particular, have to take a decision and deliver a judgement on the basis of the interactions that take place during the trial. As Antoine Garapon put it, ‘[I]f the philosophy of law is a quest for what is justice in abstracto, through ideals and rules, the quest for “judging well” requires total immersion in concreto in the very experience of the act of judging, an experience, indeed, which is just as much social and personal as it is legal’ (Garapon, 2001: 19 – our translation). Part of this experience is the production of a legal, judicial truth, solely concerned with facts established according to law, which may not exactly cover the reality of the facts (Ho, 2008; Landowski, 1988; Summers, 1999). This gap between judicial truth and what actually happened is particularly marked in India as witnesses at the bar frequently retract their initial testimony recorded by the police, precluding any thorough examination of the litigation and excluding the possibility of legally establishing incriminating facts.3 This will be illustrated here through a case study to help describe some of the techniques by which a judge may construct a two-layered narrative or

Questioning the truth  11 a dual ‘truth’ (techniques which, in common law systems, may also be used by the prosecutor or the lawyers): one is clearly disputed by the judge but is legally binding and leads to the acquittal of the accused; the other is a counternarrative, tangentially evoked in the transcript of the verbal exchanges at the bar and pointing to facts that the judge deems plausible but devoid of any legal value – a rhetorical device (Wolff, 1995) that allows judges to suggest that they have not been deceived. The truth thus established is then restricted to a procedural truth. However, our ethnography also suggests that judges implicitly recognize that the interest of both parties is sometimes better served by justice that takes into account social and local factors – which has been described as a ‘sociological truth’ (Just, 1986) – than by justice striving to establish the truth of the facts. The third discourse considers trials as processes prone to manipulations of all sorts. Critics are commonly addressed to the courts by people, including lawyers, who underline the social, economic and political context in which trials take place. According to such discourses, and in stark contrast to the idealist stance, the judicial process is a tactical ploy to which parties in conflict at local level may have recourse, among other means, and which may be subverted by corruption. The quest for truth, from this perspective, tends to be reduced to the unfolding of a script that follows a judicial dramaturgy (Samaddar, 2013). We conclude by suggesting that this range of discourses not only illustrates once more the gap that may exist between ideals and practice but also points to a specific contradiction between an institution boasting its independence and the reality of social relationships.

Truth as value Judges at High-Court or Supreme-Court levels tend to develop a speculative and idealistic approach to the question of truth. This may be expressed in the text of their judgments where truth is sometimes discussed in a style not devoid of literary ambitions and from different perspectives, whether philosophical, moral, religious, cultural or legal. The judges-cum-authors, on these occasions, introduce into their judgments comments or considerations which are not strictly related to the case in question or with the law, taking inspiration from an eclectic corpus of literature ranging from Sanskrit religious texts (Vedas, Upanishads) or epics to modern British or American writers. These judgments, in turn, become an authoritative source for further legal decisions. For instance Justice Krishna Iyer, in a Supreme Court judgment of 1977 bearing on a claim for recovering a debt, wrote: Truth, like song, is whole, and half-truth can be noise! Justice is truth, is beauty and the strategy of healing injustice is discovery of the whole truth and harmonising human relations. Law’s finest hour is not in meditating on abstractions but in being the delivery agent of full fairness.4

12  Daniela Berti and Gilles Tarabout This was quoted in turn by a judge from the High Court of Delhi, J. R. Midha, in a case about the acquisition of a property5 and in another case (a claim for maintenance)6 where a literary reference from the Supreme Court (in the Union Carbide case following the Bhopal tragedy) citing Anatole France was also quoted: Truth passes [sic, orig.: possesses] within herself a penetrating force unknown alike to error and falsehood. I say truth and you must understand my meaning. For the beautiful words Truth and Justice used not be defined in order to be understood in their true sense. They bear within them a shining beauty and a heavenly light.7 These ideals were developed in the early twentieth century (Zola’s aphorism has to be placed in the context of the Dreyfus Affair) by various thinkers and were also advocated by Mahatma Gandhi or Swami Vivekananda. They permeate current reflections on the judicial process in India. Another passage from a Supreme Court decision which is frequently found in other judgments states: (§31) . . . The truth should be the guiding star in the entire judicial process. (§32) Truth alone has to be the foundation of justice. The entire judicial system has been created only to discern and find out the real truth. Judges at all levels have to seriously engage themselves in the journey of discovering the truth. That is their mandate, obligation and bounden duty. (§33) Justice system will acquire credibility only when people will be convinced that justice is based on the foundation of the truth.8 Sometimes, this quest for truth appears to some to be a specifically Indian virtue: The Indian ethos accords the highest importance to truth. The motto Satyameva Jayate (Truth alone succeeds) is inscribed in our National Emblem “Ashoka Stambha”. Our epics extol the virtue of truth. Gandhiji gave us truth. . . . For the common man truth and justice are synonymous. So when truth fails, justice fails. . . . Truth being the cherished ideal and ethos of India, pursuit of truth should be the guiding star of the Justice System. For justice to be done truth must prevail. It is truth that must protect the innocent and it is truth that must be the basis to punish the guilty. Truth is the very soul of justice. Therefore truth should become the ideal to inspire the courts to pursue.9 The pursuit of this goal follows an oft-repeated formula: ‘the Court has to remove chaff from the grain. It has to disperse the suspicious, cloud and dust out the smear of dust as all these things clog the very truth. So long chaff,

Questioning the truth  13 cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt.’10 This responsibility falls first and foremost on the trial judge, described as ‘the keyman of our judicial system’, as he is in charge of the collection and of the evaluation of the evidence in direct interaction with the protagonists of the case, whereas appellate courts have only the written report before them, usually years later. This role attributed to the trial judge is frequently evoked in appellate courts for criticizing him or her on the poor quality of the evidence recorded at the time of the trial or for defective legal reasoning. These alleged flaws are said to irrevocably compromise discovery of the truth, leading to an irreparable miscarriage of justice which appellate courts would have difficulty repairing. The appellate Courts having only the written record before them are normally reluctant to interfere with the appraisement of evidence of witnesses by the Trial Judges who have had the advantage of looking at the demeanour of the witnesses. The appellate Court, it has been said, operates in the partial vacuum of the printed record. A stenographic transcript fails to reproduce tones of voice and hesitations of speech that often make a sentence mean the reverse of what the mere words signify. The best and most accurate record of oral testimony is like a dehydrated peach; it has neither the substance nor the flavor of the peach before it was dried.11 That Upper Courts are ‘normally reluctant’ to review evidence compares with the ‘Upper Court Myth’ aired in various works, particularly in the United States, according to which these courts, working only with files and without direct interaction with the parties concerned, hesitate to reevaluate the legal facts established by trial judges. However, in India, this does not in practice deter appellate courts from judging a case anew, not only in law but also in fact, so that the judicial truth can be overturned at each level of appeal. The idealist discourse on truth and justice is essentially normative in character, and when a denial of justice is acknowledged by the courts themselves, it is also an occasion to reiterate the same lofty ideals. This was, for instance, the case in 2004 when the Supreme Court reviewed the successive decisions taken by lower courts concerning one of the criminal incidents that took place during the Gujarat pogroms of March 2002 (an estimated 2,000 Muslims were killed by Hindu mobs with the alleged connivance of state authorities); in this incident, known as the ‘Best Bakery’ case, all the accused were acquitted: If one even cursorily glances through the records of the case, one gets a feeling that the justice delivery system was being taken for a ride and literally allowed to be abused, misused and mutilated by subterfuge. The investigation appears to be perfunctory and anything but impartial without any definite object of finding out the truth and bringing to

14  Daniela Berti and Gilles Tarabout book those who were responsible for the crime. The public prosecutor appears to have acted more as a defence counsel than one whose duty was to present the truth before the Court. The Court in turn appears to be a silent spectator, mute to the manipulations and preferred to be indifferent to sacrilege being committed to justice. . . . Judicial Criminal Administration System must be kept clean and beyond the reason of whimsical political wills or agendas.12 However, apart from gross miscarriages of justice which are officially denounced but regarded as exceptional, the ordinary, day-to-day quest for truth in courts is actually quite far-removed from the ideal established by judges from the Upper Courts, and trial judges tend to phrase the question of truth in a quite different way. The discourse regarding the practice at this level of the judiciary points to two main factors that hinder the process of fact finding: the characteristics of the adversarial procedure in common law systems, and the chronic recurrence of witnesses retracting their testimony.

Adversarial system and hostile witnesses Legal scholars have opposed so-called adversarial and inquisitorial procedures in relation to notions of truth, contrasting a ‘fight/combat theory’ with a ‘truth theory’. Langbein refers to ‘truth-impairing incentives’ of the adversarial system: In an Anglo-American trial, the job of each adversary is to win the courtroom struggle. Winning often entails tactics that distort or suppress the truth, for example, concealing relevant witnesses, withholding information that would help the other side, preparing witnesses to affect their testimony at trial (coaching), and engaging in abusive cross-examination. (Langbein, 2003: 1)13 A committee was specially set up in India in 2003 to reflect on possible reforms of the criminal justice system and echoed similar preoccupations: The Adversarial System lacks dynamism because it has no lofty ideal to inspire. It has not been entrusted with a positive duty to discover truth as in the Inquisitorial System. When the investigation is perfunctory or ineffective, Judges seldom take any initiative to remedy the situation. During the trial, the Judges do not bother if relevant evidence is not produced and plays a passive role as he has no duty to search for truth.14 The committee concluded, however, that maintaining the adversarial system would ensure greater fairness in the treatment meted out to the parties. According to a former director of the National Judicial Academy, in keeping with the theory of judicial truth (in his words, ‘law’s truth’), the tension

Questioning the truth  15 between the quest for an ideal truth and the combat effect of the adversarial procedure ultimately resolves itself: ‘judicial inquiry is to establish the existence of facts through reasoning and rationality and in accordance with law, not to establish the truth in the absolute, divine or subjective sense.’ As E. Landowski (1988: 49) observed quoting P. Foriers who explained that it is not ‘any fact, even obvious, even constant, that is deemed to be a fact according to law’, the consequence is that ‘such a principle opens the door to paradoxes as it leads to admit as “legally true” what may happen to simultaneously appear as uncertain, doubtful, or even bogus from another perspective.’ While judges in the Upper Courts may dwell on normative conceptions of justice-as-truth, trial judges have to deal with the issue in a concrete way. Their judgments preclude any speculation on truth in the abstract sense and abide by the exposition of evidence established during the trial and by the successive phases of their own legal reasoning. Expressing personal philosophical ideas would be seen as preposterous by Upper Courts. However, this does not prevent them from having their own ideas, widely shared among law professionals at the district court level. Conversations with trial judges in Himachal Pradesh (North India) showed that most of them complained that in India, ‘people have no respect for truth’.15 This discourse might seem to reproduce a colonial bias. In her work on colonial justice in India, Elisabeth Kolsky has shown that the pursuit of truth was a persistent source of anxiety for the British, as they saw Indians as a people who could not ‘distinguish fact from fiction’ or who had a ‘notorious disregard for truth’ (Kolsky, 2010: 108–109; see also Lal, 1999) – indeed, the author argues that ‘the theory of evidence in India was founded on the colonial assumption that native witnesses and their statements were not to be believed.’ Today’s discourse held by Indian judges is free of such racist and colonial overtones, and unlike former British assumptions about an ‘Indian psychology’, the alleged general disregard for truth is ascribed to the weight of local solidarities, of power relationships and of economic interests. Judges, prosecutors or lawyers may refer to this discourse during the trial, for instance when witnesses (it may be the victims as well) start to contradict what they stated during the investigation and therefore to support the opposing party. In such a situation, according to common law rules, the witnesses are declared ‘hostile’; it is insinuated that they are not telling the truth – a frequent turn of events in India, very rarely leading to prosecution for perjury (Berti, 2010). Police officers may also be blamed. The judges’ discourse about untruthful villagers goes hand in hand with a deep mistrust of the police who, out of incompetence, ignorance or corruption, are often alleged to falsely implicate innocent people or, on the contrary, to enter into negotiations with the accused and thus purposely weaken the case. The fact that most trial judges are former lawyers might contribute to generating this distrust. In this context, trial judges and prosecutors try to deal with this problem at a practical level and to show a resigned attitude when witnesses retract from previous statements. Even though judges try their best to apply Upper Court directives and to actively look for ‘the truth’, their quest is determined

16  Daniela Berti and Gilles Tarabout by the technical possibilities offered by the adversarial procedure. Judicial truth relies on rules and techniques – what Dupret (2011: 3) called the ‘practical grammar of truth in a legal context’.16 Many of these techniques enable the elaboration of a narrative which, in India, often exposes this judicial truth in a deliberately ambivalent light.

The elaboration of a legal narrative Although Indian criminal procedures apply the so-called principle of orality, according to which evidence against the defendant must be presented by witnesses in court who may be cross-examined, judiciary practice attributes a crucial role to written accounts because what witnesses say before the judge is recorded in writing during the trial. Oral evidence is produced in court mostly so that it can be put on record – a form of ‘entextualization’ (Bauman and Briggs, 1990). The transformation into a written document of the set of questions-answers that have been put to a witness enables legal professionals to create a narrative as if told by the witness and to put on record the crucial points they wish to convey. Such ‘stories’ are strategically built in accordance with the procedural constraints to legally prove one version and to challenge the opponent’s. As observed in another context (Conley and O’Barr, 2005: 26), the examination and cross-examination of witnesses and the transformation of question-answers into written documents is often done to suggest something rather than to obtain an answer. A case study will illustrate some of the techniques used to construct the judicial truth. The case was opened by the State of Himachal Pradesh against Guddu Ram, a forty-year-old villager.17 In December 2004 his wife, Kaushlya Devi, in her twenties and with whom he had two children, was found hanging from a tree in the forest surrounding the village. A First Information Report (FIR) was registered by the police against Guddu on the request of the girl’s mother and the girl’s paternal uncle, a retired policeman, under two sections of the Indian Criminal Code: section 498A, ‘punishment for subjecting a married woman to cruelty’, and under section 306, ‘abetting the commission of suicide’.18 The mother’s declaration to the police stated: My son-in-law Guddu used to beat her when he drank wine and his brothers also beat her. I met my daughter yesterday and she was alright and today, 10–12–04, at almost 1 o’clock Darshan Ram told me that my daughter Kaushlya Devi had committed suicide by putting a rope around her neck and by hanging herself from a tree. I have doubts about my son-in-law, Guddu, concerning the death of my daughter Kaushlya Devi. She got tired of his beatings and put the rope around her neck and finished her life. (our own translation from Hindi) The hearings started in October 2006 and the judgment was passed in June 2007. The prosecution called eleven witnesses, the defence none. The

Questioning the truth  17 accused was eventually acquitted. What happened during the trial throws some light on this outcome. According to procedure, on the first day of the trial, witnesses come to the bar to notify their presence, and then leave the room before being called to testify. The first witness on the list was the mother of the girl, but before calling for her, the judge asked the pradhan (president of the village assembly) of the village, a lady in this case, to come to the bar to answer some preliminary questions, which were considered to be ‘confidential’ and therefore were not recorded by the typist. The latter is always needed during the hearings of criminal cases to put all the verbal testimonies into writing: the typed version is then signed, page after page, by the judge and by the witness. The fact that the initial interaction with the pradhan was not recorded introduced a first discrepancy between what would be consigned in the court’s archives and the actual unfolding of testimonies. This informal interaction was, however, useful for the judge as an indication of the probable unfolding of the case, because a pradhan is at the very heart of village affairs, and for the judge to see to what extent the prosecutor would be able to prove the accusation. During this preliminary exchange, the judge reminded the pradhan of her statement at the time of the investigation, that Kaushlya’s suicide was the consequence of her husband harassing her over a long period of time. The pradhan retracted everything she had said to the police and had signed at the time. Here are some passages from these interactions (our own translation from Hindi; the judge or the prosecutor sometimes also spoke in English, without the pradhan understanding them). Judge, to the pradhan: Pradhan, in a firm tone of voice:

It is written here [in the police report] that she [Kaushlya Devi] was extremely troubled. . . . Nobody troubled her.

The judge, the prosecutor and the lawyers, also present, immediately understood the situation: the pradhan had turned ‘hostile’, suggesting that the other witnesses would not maintain the initial testimony they made to the police. This was explicitly stated by the prosecutor who commented: ‘if the village president does that [telling a lie], the others will do the same!’ Indeed, that the pradhan’s attitude is a standard indicator of the attitude adopted by other witnesses during a trial has been underlined in studies on the relationships between village assemblies and state courts (Moore, 1998: 85). Judge, addressing the prosecutor: (Addressing the pradhan): Pradhan, calmly:

Why has the case been made then? Prior to this, had anyone also [in the village] hanged themselves? She did not hang herself.

18  Daniela Berti and Gilles Tarabout Judge: What? How did she die then? Pradhan: When we arrived there [at the place where the dead body was found] she had fallen down and her shawl and sickle were on the ground. Though the judge may have thought that the fact of the suicide had been established, he realized that this was not the case and that a new version of what had happened was emerging, that of an accident. This was to be the version sustained by the defense. After this informal and preliminary interview, the judge asked the pradhan to wait outside the courtroom for the official hearing and called for the first witness, Kaushlya Devi’s mother. The recording in a written form of the oral testimonies could begin. According to procedure, witnesses are asked to repeat before the judge what they first stated, here in Hindi, to the police at the time of the investigation. The judge then dictates in English (which is not understood by most of the witnesses) the sentences to be recorded by the typist.19 What is said by a witness is thus translated into a different language and adapted to suit a legal wording; the exchange of questions and answers is also reformulated as if it were a continuous narrative told by the witness. Thus, while the written report present testimonies in the form of a discourse held by the witnesses, this discourse actually results from a process of interrogation, translation and reformulation. While it is mostly the judge who does these operations, the prosecutor and the lawyers may also dictate to the typist, especially at the time of the cross-examination, when there may be some competition as to who will be the first to use a turn of phrase that suits the party concerned. Kaushlya’s mother’s testimony illustrates these techniques. After a few preliminary questions, the judge arrived at a possible cause for the girl’s suicide: the dowry. He asked the mother if she had given what was customary at the time of the wedding, to which she nodded, and the judge dictated, in her name: ‘We gave the dowry to our daughter according to our position.’ The prosecutor asked, ‘[A]fter the wedding did she used to come to your house?’, and the mother aquiesced. This was an important point in favour of the accused because the absence of visits of a married woman to her parents (she always lives in a different village with her husband) can be a sign that her in-laws are harassing her for additional dowry. Extra questioning did not prompt the mother to reveal any particular problems her daughter might have had with Guddu Ram and his family. The judge and the prosecutor insisted on the woman repeating the accusation she had made when the case was first recorded by the police and which made her the main witness for the prosecution. Two years had passed since her initial statement, and the woman now seemed to hesitate in repeating her accusations. The prosecutor said to the judge that he was embarrassed; what could he do now? He continued to question the mother and try to make her say something against the accused, for example, that he had maltreated his wife or harassed her often over the years. Eventually, the judge interrupted him,

Questioning the truth  19 saying in English, ‘There is nothing in particular! She said that her daughter did not complain about anything!’ The woman then said that when the body was found, someone from the village called her and told her that her daughter had fallen from a tree. When she got there, she saw her daughter on the ground with no sign of strangulation on her neck. The prosecutor, looking astonished, said, ‘But how did she die then?’ To which the mother replied, ‘Sometimes she was sick. I do not know. . . . Only God knows!’ The judge decided not to dictate this reply. Instead he dictated to the typist in English a sentence referring to the police record of the woman’s declaration: ‘I have reasons to believe that my daughter was killed by the accused due to maltreatment. My statement Ext. PA was recorded by the police and bears my signature.’ He then addressed the woman, smiling in a rather astonished sort of way, ‘Your statement was written down at the time! It is a strange case!’ The woman murmured, ‘There are two children. The children are young. They have to be looked after.’ Although this last comment might have explained why the woman did not confirm her initial written statement, the judge did not take it into account. Instead of declaring the mother ‘hostile’, as she was contradicting her first testimony, he chose to consider the written report established by the police two years before and bearing her signature. This decision shows a certain attenuation of the principle of orality that is followed in other adversarial systems where the judge and the jury ‘do not bear any procedural memory exceeding the trial hearing’ (Scheffer, 2007: 14). By contrast, in Indian criminal trials, depositions signed by witnesses in the presence of the police – though of no value as evidence, as in other adversarial systems – are frequently used during the trial by the judge, and the witness is sometimes confronted with them. The pradhan was again called to the bar, this time to officially record her oral testimony. Judge: Pradhan: Judge: Pradhan:

When you got there, what did you see near the dead body? Nothing! Only a shawl and a sickle [to cut the grass]. And the rope? There was no rope there.

By denying the existence of the rope near the dead body, the pradhan was again denying what she was supposed to have stated to the police during investigation. The prosecutor murmured some words to the judge, and the latter dictated that ‘at this stage learned Public Prosecutor states that the witness is partly suppressing the truth and that he should be allowed to cross-examine the witness. Request considered and allowed.’ This is a codified procedure, and thereafter questions are put to the witness according to the rules that apply to cross-examinations. He or she will be systematically confronted with previous statements which are referred to after every question. To each question the witness has to reply yes or no. The content of the question is then transcribed by adding the formula ‘It is incorrect that . . .’ or ‘I have not stated that . . .’ when the reply is negative and ‘It is correct

20  Daniela Berti and Gilles Tarabout that . . .’ when it is affirmative. In the negative, the English transcription is followed by the sentence: ‘Confronted with portion [reference to the paragraphs] of the statement . . . in which it is so recorded.’ Long paragraphs from the police report may then be referred to in court records, suggesting that witnesses have changed their initial testimony and are thus lying before the court. The pradhan, who was initially called to the bar as a prosecution witness, was thus declared ‘hostile’, since her testimony was now on the side of the defence. The judge dictated in her name: ‘I have not stated to the police that rope, shawl and sickle were sealed by the police in separate parcels in my presence (confronted with portion A to A of mark A where it is so recorded).’ This enabled him to suggest, behind the ‘official’ evidence provided by the witness, an alternate truth as a subtext. The judge then showed the pradhan the deposition which she had signed: ‘Look here, and then read that over there, at the beginning of the paper. When you signed here, it was all already written there. It is written in Hindi. Read! You are able to read Hindi, aren’t you?’ But the pradhan calmly replied, ‘It was not written there when I signed.’ With this she was accusing the police of having added information (the presence of the rope) which was not there in the original document. The judge told her: Look, Pradhan ji, they [Guddu Ram and his family] voted for you [in the village elections] and in order to save him [Guddu] you are telling a lie. Pradhan: No Sir, they did not back me and I am not telling a lie. Judge:

This exchange was transcribed as follows: ‘It is incorrect that I am suppressing the truth because the accused backed me at the election of pradhan.’ While the standardized formula ‘it is incorrect that . . .’ allowed the very contrary of what was being denied to be affirmed, the sentence also pointed to the most logical reason for a pradhan to obstruct the prosecution (though neither the judge nor the prosecutor had any evidence to prove this). Reference to electoral issues is a typical way of concluding a hearing with a village president. In fact, the judge and the prosecutor often think that besides winning the votes of the accused, the village president may have received money from them. Yet, the ‘electoral reason’ is a conventional form of recording the fact that a village president has turned hostile. The final decision (an acquittal) was the logical outcome of the legal version based on the oral testimony of the witnesses: all of them, except the uncle of the victim who partially maintained a watered version of his testimony, retracted at the bar. This version was known to the judge and to all the protagonists to be factually inaccurate. Indeed, generally speaking, the truth that such judicial techniques establish may contradict the personal opinion of a judge, who may think an accused guilty and nevertheless, being strictly bound by the rules of evidence required by the law, acquit him. It is therefore necessary to nuance statements such as ‘veridiction cannot be dissociated

Questioning the truth  21 from credibility’ (Leclerc, 2001: 213). Nobody, in the Guddu Ram case, believed that is was an accident. The judgement, enunciated by an authority (Cotterrell, 1998) and respecting the prescribed rules of procedure, was simply a performative pronouncement establishing, by the very act of being pronounced, a new truth – a legal, procedural one – which in turn could be challenged before a court (Garapon, 2001: 148; Ho, 2008: 14). In the present case, the fact that it was impossible to legally establish that Kaushlya Devi’s death was a consequence of harassment along with the systematic denial by witnesses of their initial testimony led to building a kind of ‘legal fiction’ (Beidelman, 1961; Campbell, 1983; Demos, 1923). At the same time, through a series of negations, the judge managed to provide a subtext contradicting this version which pointed to a case of suicide, not an accident, and to an out-of-court arrangement between the parties. The defence lawyer, during an out-of-court conversation, admitted that it was indeed a case of suicide, and that Kaushlya Devi’s husband had been beating her, but gave as the cause an estrangement between husband and wife due to her alleged misconduct (it was not a dowry issue). The lawyer confirmed that a meeting of the families involved had taken place in the village. The risk of the accused spending ten years in jail, leaving his children on their own, had eventually convinced everybody that a conviction had to be avoided – from this perspective, the judicial truth that the court had arrived at was also a ‘social truth’ (Just, 1986): it resulted from the application of villagers’ standards, while at the same time, it was formally in keeping with the rules of state justice (Bilmes, 1976; on distinguishing norms and rules, see Greenhouse, 1982). However, it should be noted that if the judicial truth eventually corresponded to a ‘social truth’, it was in this case mainly by shunning any reference to the social context: there was no attempt to understand why Kaushlya had decided to end her life, the issue being whether her death could be attributed to her husband’s alleged ‘cruelty’ according to a legal definition; the details of a large number of important interactions during the trial, which may have helped to understand the out-of-court situation, were not transcribed in the court documents either. We have seen, for example, how the words of the girl’s mother, ‘The children are young. They have to be looked after,’ were not taken as evidence and were never evoked during the arguments or in the final order. The process of entextualization in this case was particularly relevant with regard to adjusting legal rules to a ‘social truth’, an observation that has been made by scholars in other contexts – for instance by Stiles (2009) in her ethnography on Islamic courts in Zanzibar; the author refers to the work of the historian Leslie Peirce, who noted that the different ways in which the litigant’s testimony was recorded in documents in sixteenth-century Ottoman Islamic courts was to be interpreted both as a consequence of restrictions on procedures and as a way of preserving the community’s interests. The judiciary procedure is thus part of social dynamics at local level and is seen as such by the protagonists. While, in some cases, law may be strategically used (or said to be used) by people to exercise their power, in other

22  Daniela Berti and Gilles Tarabout cases territorial or kinship allegiances and/or economic negotiations lead to private forms of conciliation or compromise which impact the judicial process. The analysis of how judicial truth is built in criminal cases has to include these social, economic and political components.

Crime: truth, intentionality and evidence An out-of-court compromise may be tacitly accepted by the court, as in the previous case. It may even be explicitly requested by the judge, somewhat questioning the criminal nature of the case. For instance, in a false rape case that Pratiksha Baxi (2015) studied and which had been filed by the parents of a girl who opposed her marriage with the accused (whom they considered to be of lower caste status), a compromise between the accused and the plaintiffs was encouraged by the judge as he was aware of the non-criminal nature of the case. The couple eventually married and had a child, but the trial for rape nevertheless had to take place as rape is a non-compoundable offence. The prosecutor and the judge had to act out a form of fiction, discussing the truth or untruth of the alleged ‘rape’ but using provisions of the law to acquit the accused. As a matter of fact, in everyday practice, legal proceedings diverge markedly from their ideal representations: They reflect local culture in the form, for example, of customary dispute settlement procedures being conducted in parallel to the formal legal proceedings, through caste councils or by quasi-religious means. Perhaps even more importantly, they are shaped by local and supra-local structures and inequalities of power that help explain, among other things, the ubiquitous influence of processes of extra-legal mediation and negotiation outwith the court itself, and the startling propensity of key witnesses to change their earlier stories when actually called to testify in court. (Good, 2015: xvii) A common discourse held in court milieus is that the statement given to the police is not usually signed by the witness and therefore has no legal value: from a legal standpoint, it could just as well be fabricated by the police. Indeed, invoking a false case is a regular defence strategy used by lawyers. It is also an allegation frequently made by castes at all levels about cases involving the (Prevention of) Atrocity Act, which criminalizes discrimination against ex-untouchables (also called Scheduled Castes, Harijans, or Dalits). For instance, upper-caste court milieus tend to see this act as being misused by Dalits for exerting pressure on a member of an upper caste by filing a false case against him or her. As a Brahmin lawyer working in Bihar explained to N. Jaoul: Police officers don’t have [the] courage to just negate lodging an FIR, even when they know that the information given to them is false. But

Questioning the truth  23 since they apprehend that they may be put into trouble, they don’t carry out the independent investigation. It is a very mechanical investigation; they never bother to discover the truth. Police fear that if they make a final report [i.e. refuse to write the FIR], the SC [Dalit] people will approach some leaders. Therefore, the charge sheet is produced by the police under pressure to avoid trouble. (Jaoul, 2015: 195) The overall picture may be more complex. Some lawyers have underlined that this misuse of the law by Dalits would not be possible without support from dominant castes: Dalits would not be in a position to face the consequences of enmity with dominant castes in their villages. So, when there was a case of Dalits misusing the laws, this might have been instigated by members of upper castes who enlisted the help of their Dalit labourers to harass their own upper-caste enemies. In this general climate of mistrust, the lawyers with whom Jaoul worked were keen to stress the alleged corruption of judges themselves. One upper-caste lawyer pretended that, in the past, lawyers would mediate bribery between the accused and the judge. However, according to him, judges nowadays took the money directly, ‘and bargaining takes place also.’ . . . A Dalit lawyer estimated that 90 per cent of judges were corrupt, just like the rest of government officials – which facilitated the fact that witnesses turned hostile. According to a prosecutor and several Dalit lawyers, if judges wished, they had the legal means to take action against such hostile witnesses for making false depositions in the first place. But my informants argued that instead of discouraging this practice, the judges preferred to accept bribes and close their eyes. (Jaoul, 2015: 192) Legal truth in criminal cases in India thus largely depends on out-of-court compromises – some reached on a voluntary basis, others imposed through intimidation – as well as on the degree of competence and integrity within the police and in the judiciary. From this perspective, the legal truth may well follow the black-letter law: out-of-court deals, however, make it look like just one element in the complex relationships among villagers, police staff and the court milieus.

Final remarks According to the Bar Council of India, lawyers in the country numbered 1.2 million in 2010, about the same as in the United States. By contrast, however, it has sometimes been suggested that in India, comparatively few cases find an out-of-court compromise (Foster, 2007). One may wonder on the contrary if, despite the quantitative success of Indian state justice (the number of cases pending is so high that the system is totally blocked, imposing years of waiting before cases can be tried), having recourse to the courts

24  Daniela Berti and Gilles Tarabout may not actually be the initial move by parties before entering into nonofficial forms of arrangement. In this perspective, the three kinds of discourses evoked in this contribution concerning the relationships between truth and justice offer striking contrasts. They may be found elsewhere. However, the discrepancy between the normative discourse, the pragmatic one or the accusations levelled against the judicial system take an acute form here. Since the court appears to be only one instance among others for solving conflicts, the truth that a trial may actually produce often depends on the part played by outof-court negotiations, whatever the initial motivation of the plaintiffs may have been in approaching the police and state justice. The records of the trial often bear traces of such compromises in the form of a subtext to the legal version, compromises that lead to the expression of an ambiguous judicial truth and which testify to the existence of obstacles, at all levels, that prevent lofty ideals, which are regularly highlighted as giving justice its meaning, from being achieved.

Notes 1 See for instance the discussions in Dupret (2006), or Ho (2008). 2 On this pragmatic approach to the process of judging, which also compares ritual and legal contexts, see Berti, Good and Tarabout (2015). 3 According to the National Crime Records Bureau, the percentage of conviction in India decreased from 36.4 percent in 2004 to 26 percent in 2007, as a consequence of retractions by witnesses. http://www.lawyersclubindia.com/articles/ A-Critical-Analysis-on-Hostile-Witnesses-6257.asp#.VYPLjuE2V2A (accessed June 2015). 4 §7, Jasraj Inder Singh v. Hemraj Multanchand, 14 February 1977; AIR 1977 SC 1011, (1977) 2 SCC 155, 1977 2 SCR 973. 5 Ved Parkash Kharbanda vs Vimal Bindal on 8 March, 2013, Delhi High Court, RFA No.83/2007. 6 Kusum Sharma vs Mahinder Kumar Sharma on 14 January, 2015, Delhi High Court, FAO 369/1996. 7 §30, Union Carbide Corporation vs Union of India (Uoi) and Ors., on 4 May 1989; I (1990) ACC 214, JT 1989 (2) SC 454, (1989) 3 SCC 38, 1989 3 SCR 128, 1989 (2) UJ 285 SC. The quote is from A Chronicle of Our Own Times, III: The Amethyst Ring (transl. B. Drillien, 1922). 8 Maria Margadia Sequeria . . . vs Erasmo Jack De Sequeria (D), Supreme Court of India on 21 March 2012. C.A. No. 2968 of 2012. 9 Committee on Reforms of Criminal Justice System (‘Malimath Committee’), Delhi, Government of India, Ministry of Home Affairs 2003, pp. 28–29. ‘Satyameya Jayate’ comes from a Upanishad’s verse and is inscribed on the pediment of some High Courts. 10 Mohan Singh & Anr vs State of M.P., Supreme Court of India on 28 January 1999, p. 4. 11 §17, Ved Parkash . . . 12 §68, Zahira Habibulla H. Sheikh and Anr. Vs. State of Gujarat and Ors., Supreme Court of India on 12 April 2004 (AIR2004SC346; 2004(3)BLJR1971; 2004CriLJ2050; (2004)2GLR1078; 2004(4)SCALE375; (2004)4SCC158). The plaintiff was a key witness to a massacre in a bakery where many of her relatives were killed. She retracted her initial testimony at the bar then later admitted she

Questioning the truth  25 had been threatened and coerced. She then changed her version many times and was accused of having received monetary inducements. She was finally tried and sentenced to a one-year term of imprisonment and a fine for contempt of court (http://infochangeindia.org/human-rights/news/perjury-earns-best-bakerys-keywitness-zaheera-sheikh-jail-term.html). The judges justified this conviction, which was exceptional in India, by the need to act against hindering the judicial process (Zahira Habibullah Sheikh & Anr vs State of Gujarat & Ors, Supreme Court of India on 8 March 2006 (Appeal [crl.] 446–449 of 2004). 13 For a detailed account of such pratices in a recent criminal case, see Sen (2015). 14 Committee on Reforms of Criminal Justice System, 2003, p. 27. 15 There is also a stereotype about gender. Once, a woman pradhan (village president) started denying in court what she had said to the police some months before: ‘the judge looked at me and said to me, “Now you can write in your report how women in India tell lies to the court.” ’ 16 One of them is the oath, still a requisite and an important criterion for accepting the testimony of a young child (who should understand ‘the sanctity of the oath’). Conversely, statements made to the police, without taking the oath, are not legally binding. In a narcotics case, for example, the accused initially admitted (in the lawyer’s absence) that there was indeed some cannabis in the house which was seized by the police but that it was for religious use. During the hearing, at the lawyer’s suggestion, they affirmed that there had never been any cannabis there. Neither the prosecutor nor the judge referred to the initial version of events recorded by the police. 17 The case has been described and analyzed in detail in Berti (2010). The names of the participants in the trial have been modified to protect their anonymity. 18 These two sections are part of the measures taken to prevent so-called dowry deaths, that is, deaths of married women who have been harassed by their husbands or in-laws with incessant dowry demands (on dowry provisions, see Menski, 1998, and Palkar, 2003). As a consequence of these measures, whenever a young married woman commits suicide, her husband and in-laws are immediately suspected and, upon the slightest accusation, arrested – this threat of arrest has led to what, on the other hand, has been denounced as the misuse of dowry provisions; see for instance Indian Dowry Law (209a): Myth vs. Reality. An Investigative Report (http://www.498a.org/contents/Publicity/498aBooklet.pdf). When Kaushlya died in September 2004, Guddu, who was accused by the girl's mother of being responsible for what had happened, was immediately arrested. After three weeks’ imprisonment he was bailed out until the start of the trial. 19 Although this procedure of recording slows the pace of the trial, it provides a written transcription of witnesses’ testimonies which will be referred to in the successive phases of the trial. Passages from these transcriptions will be read aloud by the lawyer or prosecutor during the arguments and will be quoted by the judge in his written order. They will also be used much later, when the case is examined at the appeal court many years after the verdict. Here the appeal judge will rely entirely on these transcriptions to evaluate the case.

References Bauman, R. and Briggs, C.L. 1990. “Poetics and performance as critical perspectives on language and social life.” Annual Review of Anthropology 19: 59–88. Baxi, P. 2015. “ ‘Pyar Kiya to Darna Kya’: On criminalising love” in D. Berti and D. Bordia (eds.), Regimes of legalities: Ethnography of criminal cases in South Asia. New Delhi: Oxford University Press, 52–90. Beidelman, T.O. 1961. “Kaguru justice and the concept of legal fictions.” Journal of African Law 5(1): 5–20.

26  Daniela Berti and Gilles Tarabout Berti, D. 2010. “Hostile witnesses, judicial interactions and out-of-court narratives in a North Indian district court.” Contributions to Indian Sociology 44(3): 235–263. Berti, D., Good, A. and Tarabout, G. (eds.). 2015. Of doubt and proof: Ritual and legal practices of judgment. Farnham: Ashgate. Bilmes, J. 1976. “Rules and rhetoric: Negotiating the social order in a Thai village.” Journal of Anthropological Research 32(1): 44–57. Campbell, K. 1983. “Fuller on legal fictions.” Law and Philosophy 2(3): 339–370. Conley, J.M. and O’Barr, W.M. 2005 [1998]. Just words: Law, language, and power. Chicago: Chicago University Press. Cotterrell, R. 1998. “Why must legal ideas be interpreted sociologically?” Journal of Law and Society 25(2): 171–192. Demos, R. 1923. “Legal fictions.” International Journal of Ethics 34(1): 37–58. Dupret, B. 2006. Le jugement en action: Ethnométhodologie du droit, de la morale et de la justice en Egypte. Genève and Paris: Librairie Droz. Dupret, B. 2011. Practices of truth: An ethnomethodological inquiry into Arab contexts. Amsterdam and Philadelphia: John Benjamins Publishing Company. Foster, S.E. 2007. “Doing business in India: Introduction and update for lawyers.” The California International Law Journal 15(1): 26–29. Garapon, A. 2001. Bien juger: Essai sur le rituel judiciaire. Paris: Odile Jacob. Good, A. 2015. “Foreword” in D. Berti and D. Bordia (eds.), Regimes of legality: Ethnography of criminal cases in South Asia. New Delhi: Oxford University Press, ix–xviii. Greenhouse, C.J. 1982. “Looking at culture, looking for rules.” Man 17(1): 58–73. Ho, H.L. 2008. A philosophy of evidence law: Justice in the search for truth. New York: Oxford University Press. Jaoul, N. 2015. “A strong law for the weak: Dalit activism in a district court of Uttar Pradesh” in D. Berti and D. Bordia (eds.), Regimes of legalities: Ethnography of criminal cases in South Asia. New Delhi: Oxford University Press, 171–201. Just, P. 1986. “Let the evidence fit the crime: Evidence, law, and ‘sociological truth’ among the Dou Donggo.” American Ethnologist 13(1): 43–61. Kolsky, E. 2010. Colonial justice in British India: White violence and the rule of law. Cambridge: Cambridge University Press. Lal, V. 1999. “Everyday crime, native mendacity and the cultural psychology of justice in colonial India.” Studies in History 15: 145–166. Landowski, E. 1988. “Vérité et véridiction en droit.” Droit et société 8: 45–60. Langbein, J.H. 2003. The origins of adversary criminal trial. Oxford: Oxford University Press. Leclerc, G. 2001. “Histoire de la vérité et généalogie de l’autorité.” Cahiers internationaux de sociologie 111: 205–231. Menski, W.F. 1998. “Legal strategies for curbing the dowry problem” in P. Morgan and M. Braybrooke (eds.), Testing the global ethic: Voices from the religions on moral values. Oxford: International Interfaith Centre, 97–179. Moore, E.P. 1998. Gender, law, and resistance in India. Tucson: University of Arizona Press. Palkar, V. 2003. “Failing gender justice in anti-dowry law.” South Asia Research 23(2): 181–200. Samaddar, R. 2013. “ ‘Beyond the frame of practical reason: The Indian Evidence Act and its performative life’.” Diogenes 60(3–4) (Judicial practices. Legal categories, techniques of arbitration, and forms of resistance, D. Berti and G. Tarabout, eds.), 58–73.

Questioning the truth  27 Scheffer, T. 2007. “On procedural discoursivation – or how local utterances are turned into binding facts.” Language & Communication 27: 1–27. Sen, A. 2015. Aarushi. New Delhi: Penguin Books. Stiles, E.E. 2009. An Islamic court in context: An ethnographic study in judicial reasoning. New York: Palgrave Macmillan. Summers, R.S. 1999. “Formal legal truth and substantive truth in judicial fact-finding: Their justified divergence in some particular cases.” Law and Philosophy 18(5): 497–511. Wolff, F. 1995. “Trois techniques de vérité dans la Grèce classique. Aristote et l’argumentation.” Hermès, La Revue 15: 41–71.

2 Evidence, certainty, and doubt Judge’s knowledge in Iranian criminal sanctioning Arzoo Osanloo

The institutionalization of Islamic principles (shari‘a) into code law is an important component of legal modernization in many Muslim-majority societies. Contemporary local debates around the Islamicized codes expose the struggles to incorporate idealized sacred scriptural texts and theory into national legal forms with practical operational capacity. In Iran, a study of the historical foundations and present-day effects of codified shari‘a allows for a more nuanced understanding of how civil (tortious) and criminal proceedings are blended and how this blended form serves certain logics surrounding punishment. For the purposes of this volume examining truth, intent, and evidence in the sociolegal study of crime, I consider an important component of judicial decision-making in Shi‘i Iran, that of the judge’s knowledge (elm-e qazi). Judge’s knowledge operates both as a way to talk about reasoning and as a form of evidence. In this chapter, I examine some of the provisions in the new penal code with respect to judge’s knowledge. These new provisions regulate the age of culpability in criminal activities. One article, in particular, permits a juvenile defendant to argue that a lack of mental maturity made it impossible for him or her to possess the necessary intent for the crime. This provision rests squarely on a judge’s perception of a defendant’s lack of mental maturity to commit the proscribed act. In this chapter, I will explore how these two provisions work together. Drawing from Isaac Schapera’s (1972) finding that crime is a concept deeply rooted in social organization and perception, this volume’s editors suggest that to understand the nature of crime in different societies, scholars should attend to the perceptions and definitions of various actions as crimes by looking at the contexts and the people involved at various stages and moments of the case, including fact finding, mediations, and trials (BenHounet and Puccio-Den, 2017; introduction to this volume). This exploration requires a dual persepective. By dual perspective, I suggest that, on the one hand, we move our perspective outward, beyond court room descriptions, to consider broader social, cultural, and indeed, political affairs that may underlie perceptions of a crime. On the other hand, we move our gaze inward to examine the minutiae that make up the everyday practice of legal activity itself. The aim, thus, is to look at law in different societies as a

Evidence, certainty, and doubt  29 practical, daily activity imbued in social relations (Dupret, 2011). In this chapter, I consider how the notion of judge’s knowledge rests uneasily on judges’ perceptions of the elements that make up the crime. In murder, which is the crime that I take up here, this includes the actus reus, or the commission of the physical act that constitutes the crime, and the mens rea, or the possession of the requisite intent to commit the act. These are the elements necessary for the crime of intentional murder. There is an additional element that I address in this essay, which is significant for proving a case based on a judge’s knowledge. Beyond the two elements needed to establish the crime of murder, when judge’s knowledge is the form of proof that determines the defendant’s guilt, judges must demonstrate that they possess this knowledge with certainty. Such perceptions often rest on oral testimonies of the victims, the accused, witnesses, and experts. As I will discuss, the elaboration of judge’s knowledge in the new codes, especially with respect to juvenile defendants, suggests a drawing of boundaries around or imposing a limit upon what can comprise the basis of a judge’s decision, particularly in capital cases. I argue that in the new codes, we see increased attention by Iran’s legislative and judicial bodies to the development of parameters to guide judges in their legal rulings. At the same time, the elaboration of judge’s knowledge as a form of evidence signals the attempt to preserve, in the now-codified shari‘a, the historical openness it ideally possesses. This ideal can allow judges the necessary discretion to tailor decisions to the circumstances of individual cases, but it could also leave judges with too much individual authority, leading to uneven applications of the law.

Historical context After the 1906–1911 Iranian constitutional revolution, the newly created monarchical state wrote the country’s first constitution and affirmed the state’s conformity with the principles of Shi‘i Islam (Afary, 1996). The codification of shari‘a into a comprehensive state law had begun earlier, in 1905, and spanned many substantive areas of law. The process of codification brought together norms of code law with shari‘a in what ultimately became a hybrid legal system (Osanloo, 2009). Soon after Iran’s revolution of 1906–1911, governing institutions began importing civil and penal codes primarily from France and Belgium and revised the legal system (Banani, 1961). Up until the 1979 revolution, Iran’s criminal codes went through a series of secularizing reforms that systematized offenses and punishments while establishing a hierarchy of courts to adjudicate allegedly criminal behavior and to arbitrate over disputes. The Iranian civil and criminal codes of 1939 and 1940 removed any references to shari‘a and remained that way until the revolution. In 1979, a popular revolution deposed the ruling monarchy. A coalition of leaders including religious and secular nationalists established a new system of governance: an Islamic Republic. A referendum supported by some

30  Arzoo Osanloo 98 percent of the population vested religious leaders (ulama) with great political authority through the power of the Guardianship of the Jurisprudent (Velayat-e Faqih). Despite this initial popular support, the bitter disputes that took place both before and after the drafting of the constitution revealed vast differences in how coalition leaders understood this new system of governance (Arjomand, 1988). In this newly envisioned branch of government, the ulama would consolidate their power by controlling all judicial, military, and others matters deemed important to the political organization of the state. When Ayatollah Khomeini was elected as the country’s highest authority, as the Ruling Jurist (Vali-ye Faqih), he quickly moved to dissolve the basis for the existing judicial apparatus and renewed his appeal to integrate shari‘a into state law. In an apparent revitalization of shari‘a principles, Khomeini and the supporting ulama called for conformity of state laws to Islamic principles. This was a substantive shift from the previous era in which laws were not to conflict with the shari‘a. Thus, Article 4 of the 1980 Constitution established the Council of Guardians to ascertain that legislative acts indeed conformed to principles of the shari‘a. The broad changes made to the justice system stemmed from the governing ulama’s aim of rooting the institutions of government in Shi‘i Islamic traditions, as they interpreted them. Thus much of the systematization of the previous era was dissolved and initially replaced with new laws and new revolutionary Islamic (shariat) courts that gave judges wide discretion in the cases they heard. There was also a marked attention to crimes against the state and the aims of the revolution. For instance, the judiciary established a Revolutionary Court to prosecute individuals alleged to have violated the principles of the revolution and interpreted as acts against the state. Such crimes are tantamount to treason and included a wide range of offenses, including terrorism, inciting violence, blasphemy, insulting the leader of the Islamic Republic, and smuggling. The repeal of laws and the closure of courts without corresponding institutions to replace them, however, complicated the system and prevented the judiciary from handling complaints effectively. In an effort to rehabilitate the poor standing and inefficiency of the courts, the judiciary increased the use of alternative dispute resolution practices. Drawing upon what the judiciary felt were principles of consultation (shora) rooted in Muslim practices, it created various councils to house alternative dispute practices. One of the effects of these new councils was greater decentralization of the judiciary. This shift toward conflict resolution outside of the courts led to certain procedural changes and included the requirement that judges foster mediation in disputes.

Codifying and modifying the criminal laws Between 1982 and 1983, the legislature passed four bills that established new penal codes that, according to the country’s leaders, brought Iran’s laws into conformity with Shi‘i fiqh (jurisprudence). The laws divide crimes into

Evidence, certainty, and doubt  31 three categories based on prescribed punishment: hudud (fixed and mandatory punishments for specific crimes defined in the scriptural texts and deemed to be violations of God’s law), qisas (retribution), and diyat (compensation).1 The four bills passed into law thus consisted of (1) the Law Concerning Hudud and Qisas and Other Relevant Provisions; (2) the Law Concerning Diyat; (3) the Law Concerning Islamic Punishments; and (4) the Law Concerning Provisions on the Strength of Ta‘zir. While hudud, qisas, and diyat consist of specified violations for which punishments are deemed to be based on scriptural texts, ta‘zir are discretionary violations for which no specified punishment exists in the sacred texts. Ta‘zir punishments serve a deterrent purpose in criminal sanctioning. They consist of public offenses of immoral behavior or threats to security and public order. In 1991, the legislature combined the first three laws under a unified penal code, and in 1996, it added a revised chapter on ta‘zir. Also in the early 1990s, the legislature reintroduced new codes of civil and criminal procedures, completing the organization of Iran’s Islamic criminal justice system. With the exception of ta‘zir punishments, these laws were provisional; the legislature initially approved them for a five-year period and renewed them at intervals. Then, in 2013, the Iranian parliament and its oversight body, the Council of Guardians, passed and approved the finalized penal code.2 In 2014, lawmakers revised the codes of criminal procedure as well, and judges began implementing them in June 2015. An amendment to the penal code in 1991 created a category of public injury for what were regarded, up until then, as private crimes, including murder (Osanloo, 2012). This provision made homicide both a public matter for prosecution and, at the same time, a private tort with a plaintiff. Thus, in murder cases, tort and criminal liability are assessed by the same court. First, under a theory of tort, the private plaintiff or family of the victim can make an appeal under the Islamic penal code for qisas. Then, the state uses its discretion under the ta‘zir provisions to assess the nature of the public harm.3 In such cases, there are at least two plaintiffs: the next of kin and the public. In such cases, only the former possesses the right to retributive punishment. If the family of the victim forgoes retribution, only then can the state’s prosecutor, on behalf of the public, makes a case for punishment based on public interest and deterrence. In such cases, the maximum sentence ranges from three to ten years imprisonment. The practical result of the amendment, thus, was to ensure a prison sentence for perpetrators if the family of the victim exercised its right of forbearance.4

Judge’s knowledge as form of proof The criminal codes codify evidentiary requirements needed to prove criminal cases. Drawn from Shi‘i jurisprudence (fiqh), these four bases of proof include confession (eqrar), witness testimony (shahadat), sworn oaths (qassameh and sogand), and finally, judge’s knowledge (elm-e qazi).5 With regard to the last method, Shi‘i fiqh permits a judge in certain “fixed punishments

32  Arzoo Osanloo and death sentences by-way-of-retaliation to sentence on the basis of his own knowledge” (Peters, 2005: 163). Judge’s knowledge is an important form of proof, not just in cases involving juveniles but also in many criminal cases.6 In Muslim penal systems, crimes are categorized according to their prescribed punishment. Because the categories are said to be derived from the sacred sources, change is extremely difficult to bring about. The penal code construes judge’s knowledge as “the certainty that the judge attains from clear evidence presented in a matter brought before him.”7 This provision further obligates judges to state the source of evidence that serves as the basis of their knowledge in making the decision. The new penal code adds a note to this provision listing the acceptable forms of evidence that can comprise the judge’s knowledge. These include expert opinions, site inspection, local investigation, witness statements, and reports by law enforcement officers. In addition, this explanatory footnote clarifies that judge’s knowledge cannot be derived from a generic perception. This footnote, elaborating the requirement (and forms) of documentary evidence, allows for an important check on the judge’s claim to certainty. Another provision explains that if the judge arrives at a decision based on judge’s knowledge and that the judge’s knowledge contradicts other lawful evidence, then the judge may disregard that other evidence.8 The judge must, however, explain the basis of his findings and justify his rejection of the other evidence. Finally, the penal codes develop a hierarchy of evidentiary forms. Where there is conflicting evidence, confession has priority over testimony and sworn oaths. Testimony is given priority over a sworn oath.9 Because judge’s knowledge remains one of the primary evidentiary bases of legal rulings, its elaboration in the new penal code has significant and immediate consequences. This is especially the case for juvenile defendants.

Judge’s knowledge and juvenile “maturity”10 The new criminal code appears to outlaw the death penalty for some juveniles, though not all, and allows for a judicial determination of criminal intent based on a judge’s finding of the defendant’s mental maturity. This constitutes not only a major revision to the penal code, but addresses an area where Iran has been deemed in gross violation of human rights, especially the Convention on the Rights of the Child (CRC), to which it became a signatory in 1994.11 The new penal code excludes from criminal responsibility children it deems to be immature. Article 146 states that “immature children have no criminal responsibility.” Article 148 provides correctional and security measures for immature offenders. In a significant revision from the old penal code, the new code stipulates the age of maturity for criminal responsibility. Article 147 of the new penal code provides that the age of maturity is nine lunar years (eight years and nine months) for girls and fifteen lunar years (fourteen years and seven months) for boys. The new code appears to revise the ages of maturity alongside gender by drawing from Shi‘i scriptural

Evidence, certainty, and doubt  33 sources.12 By stating the age explicitly, the new code appears to eliminate the possibility of using conflicting sacred sources that propose older ages for criminal responsibility.13 Regardless of the new problems presented by specifying the age for criminal responsibility, some important clarifications to the old penal code do appear. In determining criminal responsibility, the new penal code takes into consideration the defendant’s age alongside of gender.14 Article 88 of the new law spares youth who have not reached the age of majority from the death penalty under the discretionary ta‘zir laws. Youth who have not reached the age of majority are defined as girls under the age of nine or boys under the age of fifteen, respectively.15 That is, girls under the age of nine or boys under the age of fifteen when the crime was committed will not be executed.16 In addition, this provision establishes four additional groupings based on age for consideration of criminal responsibility, but the consequence may be different for male and female offenders. Defined in Article 88, the new code subjects youth offenders to different rules in association with the different categories of punishment: ta‘zir, hudud and qisas (for these purposes, qisas includes diya). I divide the following discussion by gender, age, and category of crime. 1 Under nine years old, gender matters only for hudud or qisas: a

Ta‘zir offense: Neither boy nor girl will be held criminally responsible. On a discretionary basis, judges may sentence a child to correctional measures, which include surrendering him or her to his or her parents with a pledge of reform, sending the child to a social worker or psychologist, or prohibiting him or her from going to certain sites or seeing specific persons. b Hudud and Qisas offense: Boys who have not reached the age of maturity could be subject to correctional measures, as discussed. Girls, however, could be held criminally responsible through a very strict reading of the provision as it refers to lunar years. Thus, girls who committed a hudud or qisas crime under the age of eight and nine months (solar years) will be treated the same as the boys. Girls over eight years and nine months could be found criminally responsible if they are also deemed to possess the requisite age of maturity, both physical and mental.

2 Between nine and twelve years old, gender matters for hudud and qisas: a

Ta‘zir offense: Neither boy nor girl will be held criminally responsible. As already described, they may be subject to correctional measures based on the judge’s discretion. b Hudud and Qisas offense: As noted, there is a significant difference between boys and girls in this category. A boy who has not reached the age of maturity will be subject to correctional measures. A girl in this age range, however, has reached the legal age of maturity. In

34  Arzoo Osanloo such cases, the burden of proof rests on her. Girls in this age range may be subject to the punishments prescribed in the penal codes, unless they can prove they do not possess the maturity to be held responsible. 3 Between twelve and fifteen years old, gender matters for hudud and qisas: a

Ta‘zir offense: There is little difference between boys and girls. Generally, youth will be sentenced to correctional measures. In severe cases only, a judge may sentence the youth to be held in a correctional and rehabilitation center from three months to one year. b Hudud and Qisas offense: A boy who has not reached the legal age of maturity, fifteen lunar years (or fourteen years and seven months in solar years) will be subject only to correctional measures or for severe offenses for up to one year in a youth correctional facility. Boys who have reached the age of maturity (fourteen years and seven months) and girls will be subject to punishments for hudud and qisas. 4 Between ages of fifteen and eighteen, gender matters only in cases of hudud and qisas: a

Ta‘zir offense: There is little difference between boys and girls, but the seriousness of the crime is important for sentencing. Youth convicted of minor crimes will usually be sentenced to a maximum of two years in a youth correction and rehabilitation center. Additional fines and public services can also be ordered. For serious crimes, youth could be sentenced to up to five years in a juvenile correctional facility. b Hudud and Qisas offense: Boys and girls between fifteen and eighteen, who are deemed to have reached the age of maturity, will bear adult criminal responsibility for their offenses. Article 91 of the new penal code provides an important qualification to these categorizations by allowing the presiding judge in such cases to consider maturity in both physical and mental terms, and states: With regard to crimes punishable by hudud or qisas, where the accused have reached physical maturity and are under eighteen years old, if they do not understand the essence of the crime committed or its inviolability, or if there is a doubt as to their complete mental growth, then, the appropriate measure of punishment shall be accorded with attention to their age, based upon the punishments provided in this chapter.17 Article 91 of the new penal code creates a provision stipulating that under certain circumstances, offenders younger than eighteen may be exempted from hudud and qisas punishments and sentenced instead to correctional

Evidence, certainty, and doubt  35 measures. This determination is based on the judge’s knowledge. As stated earlier, the Iranian penal code requires a judge to state the source of this knowledge. A note to this provision states that the court may consult experts or use other means necessary to determine mental maturity. An important consideration in such cases is the burden of proof, which rests solely with the juvenile who has reached the legal age of maturity. This presents a somewhat ironic situation in which a juvenile is tasked with arguing that he or she does not possess the requisite mental capacity for the crime.18 Given the increased emphasis on judge’s knowledge, it is important for researchers to examine how this new provision, Article 91, operates. Despite the critiques, the Iranian penal code makes it a requirement for judges to define the basis of their decisions. This requirement appears to seek to hold judges accountable to their decision-making processes. When the revisions to the penal codes were first published, Human Rights Watch referred to this overemphasis on judge’s knowledge in assessing the mental maturity of juvenile offenders as deeply problematic because it gives “judges wide discretion to issue punishments that violate the rights of the accused.”19 Iranian human rights lawyers have also highlighted the shortcomings of this new provision.20 Although the criticisms are reasonable, particularly given the severe punishments in the penal code, some lawyers with whom I spoke had lobbied for changes to the laws on youth offenders and were hopeful about the new laws. One lawyer, who worked at the Society for the Protection of the Rights of Children and regularly defended juvenile offenders, told me that she and her colleagues were cautiously optimistic about this development. She said that this gives judges more latitude, it “opens the hand of the judge” to render a decision based on the evidence we present.21 It is an opportunity, then, for able advocates to proffer evidence of a juvenile defendant’s lack of maturity. Another attorney with whom I spoke, a defender of children’s (and human) rights, now outside of Iran, is a critic of this law, not only because it still diverges from Iran’s responsibilities under the CRC, but, he noted, there is a lot of emphasis on each judge. He noted, “Instead of having a law strictly based on the age of majority in accordance with the international human rights system and the Convention on the Rights of the Child, this law still leaves too much power in the hands of judges and will lend itself to disparate outcomes.”22 An Iranian social worker who works as an advocate on behalf of juvenile offenders told me, “This new law is a big deception. They can still execute youth.”23 He argued that the laws should explicitly ban executions for underage offenders in conformity with the CRC. As if responding to the latter criticisms, the lawyer in Iran said, “This law is not perfect. We believe the age of majority should be in accordance with the CRC, since Iran is a signatory, but at least this leaves the judges some leeway in making decisions, whereas before, the law did not allow it. This new law lets lawyers persuade the judges.”24 Finally, when I asked about the possibility of revising qisas with these considerations in mind, several judges responded that “qisas is sacred law and not subject to modification.”25

36  Arzoo Osanloo Most legal advocates find that this law offers possibilities to spare juvenile offenders, but at the same time, it leaves judges with too much discretion to determine the crucial issue of lack of mental capacity. On the one hand, the new provisions allow for judicial discretion, providing judges wide latitude to tailor sentencing to the nuances of a case. On the other hand, this discretion afforded judges, even in light of the procedural elements put into place requiring “certainty” in judge’s knowledge, can still leave too much autonomy to individual judges, leaving open the possibility of uneven and disproportionate sentencing. To see how judge’s knowledge was used to shape the new provisions relating to juvenile intent, it may be useful to explore the dissenting opinion that helped influence changes to the law.

The minority opinion Iran’s judicial process is rooted notably within a system in which codified laws are to be implemented by judges who serve as state functionaries. At the same time, the system aims to adhere to a classical Islamic legal framework that allows judges to act as jurists. The legal system, moreover, is comprised of a hybrid of principles from both the shari‘a and civil law. In a criminal hearing, after the admission of all the evidence and testimony for the case, the judges ask all parties present to sign their statements as recorded by the court stenographer. The judges then conclude the session and clear the courtroom to discuss and argue among themselves to reach a decision on the defendant’s guilt or innocence, and thus the sentence.26 Until June 2015, in murder cases, as with other crimes involving capital punishment, a panel of five judges consisting of four associate judges and a chief judge issued a decision; now the panel consists of three judges.27 Iran’s legal system is closely attuned to a civil law system that does not follow stare decisis.28 Although seemingly rigid and severe, the legal system is not impervious to change. During my fieldwork over the summers of 2012, 2013, and 2015, I discovered how it comes to pass that previous rulings can be used to change the law. Indeed, it was the impact of a dissenting or minority opinion that influenced parliament to elucidate and elaborate how judge’s knowledge is to be practiced. This minority opinion challenged judge’s knowledge in the context of establishing criminal intent in juvenile cases. I first learned of this minority opinion when I went to Tehran’s Provincial Criminal Court to obtain permission to sit in on criminal cases.29 There, I met Judge Eftekhari, the supervisor of Tehran Province’s Criminal Court. During that meeting, the judge gave me a copy of the minority opinion he had authored, which he explained, provided the rationale for requiring judges to consider mental capacity within the definition of maturity, not just a defendant’s physical age, in determining whether a defendant possessed the requisite intent to have committed the crime. In a 2007 decision, Judge Eftekhari wrote the dissenting view that would shape the new criminal codes with respect to sentencing juveniles. In that case, the defendant, a youth fifteen years of age, had been accused of murder.

Evidence, certainty, and doubt  37 Eftekhari wrote about a child’s maturity and what that means for criminal intent. The defendant was born on April 7, 1990, and at the time the crime was committed, on August 18, 2005, he was fifteen years and four months old. The minority opinion submitted by the two judges who opposed the imposition of the death sentence was based on the matters that are to be taken into consideration for children accused of the most serious crimes and how judicial knowledge should be shaped in such cases. The following are the relevant excerpts of the minority opinion.30 First, Judge Eftekhari summarized the facts of the case: While travelling [the defendant] had a dispute with the passengers and while having the dispute he commits intentional murder and is arrested after the complaint by the family of the victim. During the initial investigations [the defendant] explicitly confessed to the stated intentional murder. The public prosecutor’s office requested retaliation by issuing a writ of criminality and bill of indictment from the Tehran Province’s Criminal Courts and sent the case to the criminal court for trial. During trial, the defendant confessed to committing the murder, but failed to present legitimate arguments in his defense. The justifications presented by the defendant and his attorney [in his defense] were not acceptable because they did not meet the required conditions of the stated defense. The judicial panel, thus, recognized them as unacceptable. Next, the judge raised the key factor that determined the defendant’s guilt, that of his mental capacity, the definition of which he and another judge disagreed with the majority: Although the physical age and mental capacity of the defendant while committing the crime caused some disagreements among the members of the judicial panel, the majority of three judges from the panel determined that the defendant was guilty and could be subject to qisas [retaliation], pursuant to Article 49 of the Islamic Penal Law and Article and note of Article 1210 of the Civil Code. The minority of the panel did not determine him subject to qisas. The author described his logic and reasoning in detail for not issuing qisas as described below. To explain the basis for his disagreement with the majority opinion, the judge explicates the language of the old penal code provision (Article 49) that defines criminal intent using the language of the civil code (Article 1210): Article 49 of the Islamic Penalty Law states that “Youth, in case of committing a crime, are void of criminal responsibility and responsibility for their discipline, in the opinion of the court, lies with their guardians, and when the occasion arises, with the Juvenile Reform and Rehabilitation Center.” Child means a person “who has not reached the lawful age of maturity” but in none of the articles of the Islamic Penal Law and other

38  Arzoo Osanloo criminal regulations is there any mention of an age of maturity with respect to criminal responsibility. Only in the [newly] introduced [criminal] law and Article 1210 [of the Civil Code] is it mentioned that “the age of maturity is the complete age of 15 for boys and for girls the complete age of 9.” Therefore, the theory that recognizes the age of maturity as mentioned in the Civil Code as necessarily observed in Article 49 of the Islamic Penalty Law, for criminal responsibility, is unsound. In the judicial custom of the current years, this opinion (theory) has been the predominant one, but if law-makers believed in a determination of a specific age regarding the enforcement of crime, they would have spent time explaining the subject and clarifying the age in the Islamic Penal Law and the several amendments, but there was no such action. In the preceding paragraphs, the judge introduces the confusion presented when judges clarify the imprecise language of Article 49 of the penal code by referring to Article 1210 of the civil code, the latter being only a presumption. Judge Eftekhari finds fault with this logic, arguing that had lawmakers wanted the penal codes to be defined by an exact age, then they would have stated so. In the next paragraph of the minority opinion, Judge Eftekhari clarifies his point even further. Determination of the age of maturity in boys and girls in the note to Article 1210 of the Civil Code is only a presumption in the determination of maturity due to the fact that in jurisprudential sources maturity conveys a specific meaning based on specific indicators. These indicators sometimes present in ages lower than nine and fifteen in girls and boys, and sometimes they appear later. This factor depends on the geographical, climate, environment, educational circumstances and many other elements; therefore, it is not possible under any circumstances to say that every girl will reach maturity at the exact age of nine and every boy will reach maturity at the exact age of fifteen. So the stated age in the Civil Code is just a presumption for people reaching the age of maturity and in case of any doubt, it should be investigated. Here the judge presents an important nuance in the term maturity, suggesting that there exists not only physical but also mental maturity, finding that the two do not necessarily present in youth at the same time. Without any doubt, agreement exists between scientists and legal experts that children should not be punished. A mature person, however, should be punished in case of committing a crime. Proof of committing a crime and what is of question [here] is the separation between childhood and maturity and whether or not there is a necessary connection between puberty and maturity in criminal issues. In other words, does puberty necessarily happen at the same time as maturity or not?

Evidence, certainty, and doubt  39 In this regard, the majority of the experts in this area believe that there is no link between physical puberty, which is the preparedness for having sexual intercourse and instinctual preparedness for marriage, and mental maturity. [This is] because someone who has reached maturity is not necessarily wise and mature, due to the fact that human beings go through evolution gradually, and after childhood, they reach sexual puberty, and after a while (after physical and sexual puberty), they reach mental maturity, and this mental maturity means discernment and understanding of the good and bad, the virtue and obscenity of actions, and recognizing the signs and results and consequences of actions. Given these explanations, the enforcement of punishment, especially severe punishments, such as denial of life, which is irreversible and irreparable, raises doubt, and to eliminate this doubt, there is need for investigation and examination and if the doubt is not removed, then the Principle of Dare‘eh (Doubt) applies. In this paragraph, the judge introduces a key principle into the judicial reasoning for the most serious crimes, the principle of Dare‘eh. He argues that in such cases, when the defendant bridges the uncertain terrain between presumptive legal maturity according to the civil code (age nine for girls and fifteen for boys) and the legal age of majority (eighteen), the application of legal regulations must necessarily leave the judges with doubt. In such cases, they must apply the legal principle of doubt, codified in the penal code under Articles 120 and 121. This principle finds that when doubt or uncertainty about the occurrence of a crime or the necessary elements thereof is present, then the commission of the crime has not been established.31 This principle becomes a crucial factor in the judge’s analysis as he further explicates the scripture and jurisprudence underlying the definition of maturity in the most serious cases. Legislators emphasize that for intervention in financial affairs, the Qur’an and jurisprudential sources require proof of maturity. As an example, in verse six of the Nesa Chapter and in note two of Article 1210 of the Civil Code, the legislature stated that: “The possessions of a minor can only be given to him/her if his/her maturity is proven.” Therefore, immaturity (even if the individual has reached the age for physical puberty) is an obstacle to entering into financial affairs. Legislators also follow this logic in many economic and social affairs. This is evident in the passage of laws that require the age for participating in social, political and economic affairs as over fifteen years of age because lawmakers determine that a person under fifteen years old lacks sufficient understanding and discernment of political, social and financial matters. So how is it possible for lawmakers to believe in the immaturity of a fifteen year old boy in less important issues, but then in criminal responsibility, which is of higher importance, consider him mature and responsible?

40  Arzoo Osanloo Now referring to the jurisprudential works of contemporary Shi‘i scholars (foqaha), Ayatollahs Makarem-Shirazi and Nuri-Hamedani, the judge defines and breaks down maturity into several categories. Some of the Marj‘eh Taqlid (Sources of Emulation) have made comments on this topic, stating that a person cannot be punished if his/her maturity is not established. For example Ayatollah Makarem-Shirazi was questioned regarding the age of maturity and court orders. He said, “Maturity in boys is the age of fifteen and for girls, the age of nine. Maturity, however, has a couple of stages and requires legitimate proof: 1) Maturity means age of lawful responsibility and observing the religiously obligatory and prohibited acts, such as fasting and other such things; 2) Maturity means preparedness for fasting in a manner in which there is no loss or damage [to physical and mental wellbeing]; 3) Maturity for marriage for girls would be prepared enough in a physical respect such that there would be no danger of damage to organs from sexual intercourse; and 4) Maturity regarding economic, financial and criminal issues requires mental maturity.” And in another place, he [Makarem Shirazi] mentions, “For teenagers to be subject to the criminal laws, it is required that at minimum mental capacity be proven. This is because since qisas is subject to the Principle of Doubt, and there is doubt in some aspects [of maturity] for a person who is above the legal age of maturity [nine for girls and fifteen for boys] and who is under eighteen. In addition, if the valid legal decision regarding such a person causes contempt of Islam in the outside world, there could be some reductions taken into consideration.” On the same topic, Ayatollah Nuri-Hamedani states, “The legitimate age of maturity for boys is the age of fifteen and the age of nine for girls, but the Islamic government can establish the necessary laws by basing them on the interests of Islam and Muslims. [The government] can create laws by taking into consideration the elements of maturity and the interests of society. Also, he replied to a question: Can a reasonable judge allow some reductions in some criminal punishments if they [would otherwise] produce contempt of Islam? Response: He can if he does so with (by observing) care and interest.” Finally, Judge Eftekhari ends his minority decision with a summary of his argument. The main factor at issue is that at these ages, when youth are deemed to have achieved physical maturity, there still lies uncertainty as to mental maturity. As a result, the law compels the application of the principle of doubt. In such cases, a procedure must be put into place to eradicate the uncertainty. In the final sentences of his dissent, the judge provides lawmakers a path for eradicating doubt. If so applied, the form of proof, judge’s knowledge, can better seek the truth of maturity in juvenile offenders. These statements demonstrate that the jurisprudence on maturity in which doubt exists, does not recognize the implementation of severe

Evidence, certainty, and doubt  41 punishments as acceptable and [scholars] have focused on preventing it. These rulings are issued based upon authentic jurisprudential sources. Finally with regard to the Islamic Punishment Law, the maturity of the person at the time of committing the crime was clearly stated. Maturity, as referenced in some recent and guiding verses, ahadith, and rulings, does not apply to physical and sexual maturity, but consists of mental maturity, which was explained as mental capacity and growth of the brain. It is under these circumstances that the [judicial] panel determines the integrity or indecency of actions and becomes completely aware of the results and the circumstances of [the defendant’s] actions. In addition, with regard to the fact that the reasoning of Article 1210 of the Civil Code still leaves space for doubt, the Principle of Doubt prevails. Thus, issuing an order for qisas at the present moment for a defendant that was fifteen and a half at the time of committing the crime, and his mental maturity was not proven, is not permissible. Therefore I believe that the defendant should be presented to a commission of legal physicians so that they may observe the above-mentioned person for a limited period of time and determine whether or not the defendant had reached mental maturity at the time of committing the crime. It is certain that they will be able to arrive at a decision after they have completed this process. Judge Eftekhari’s minority opinion found significant problems with the application of the law, especially the absence of consideration of the defendant’s mental maturity. The minority opinion advanced five points of disagreement with the majority: (1) the meaning of “child” is not defined in penal code, and as defined by civil code, it is not valid for criminal sanctioning; (2) puberty in the civil code is a presumption, which in criminal contexts produces a doubt that should be investigated; (3) there is a difference between puberty or physical maturity and intellectual maturity that is required for possessing the requisite mental state for criminal intent; (4) in economic affairs, the law and scriptural sources require mental maturity, so it should be the case for the more severe sanctioning that occurs in criminal affairs; and (5) theses of the jurisprudential scholars and ulama require findings of mental maturity. The findings of the minority opinion along with the subtle changes to the penal code reveal the imperfect structural relationship between the aspirational principles of the shari‘a and its application through the civil legal structure, which also gives it shape. Scholarly expositions on judges and judging in Islamic law have debated the role that civil judges play in judging and have noted refinement thereof in the notion of qazi. Historically the administration of Islamic law has resided within the province of jurists, those educated in the scholarly pursuits of the science of jurisprudence. That is, only those persons aware of and educated in the broad scholarly issues involved in carrying out justice within the Islamic context could be in the position to administer the law. For this reason, some scholars such as Schacht have referred to Islamic law as “jurist’s law” rather than “judge’s

42  Arzoo Osanloo law,” denoting the concern with ethical issues inherent in the administration of law. Some have suggested that jurists trained in fiqh had an aversion to a rationalized system of process that could be carried out by mere judges not trained to appreciate the underlying moral considerations embedded in the shari‘a. Thus, the administration of shari‘a justice was characterized by a lack of procedural uniformity through the ages, as recognized by scholars working in numerous regions, most notably Max Weber, who referred to this as “qadi-justice” (Weber, 1978). The moral considerations and a personalized style of process were the characteristic traits of Islamic, or qadi, justice (Weber, 1978). As Schacht put it, “Islamic law provides the unique phenomenon of legal science and not the state playing the part of a legislator, of scholarly handbooks having the force of law (to the extent which Islamic law was applied in practice)” (1964: 210). On the other hand, some contemporary scholars of Islamic law argue that while codification gives the shari‘a unambiguous legal force, it disrupts the historical power of Islamic jurists – who are not simply judges – to use a certain level of discretion in assessing the cases before them. Referencing the codification of Islamic principles by the Ottomans, Zubaida noted, “The object was to preserve an Islamic or a national authenticity in law, but to cast it in a ‘modern’, that is, European form” (2005: 133). Codification, however, “denudes the shari‘a of all its institutional religious garb, it is ‘dis-embedded’ and de-ritualized” (Zubaida, 2005: 134). When law is codified, it becomes the object of the state, and the judge serves as the state’s functionary arriving at decisions based on the codes and procedures that the state has determined (Zubaida, 2005: 134). The judge has lost the autonomy to make decisions based on a reference to sacred sources and the principles derived from them. In one sense, then, Judge Eftekhari’s minority opinion asks the Iranian lawmakers to recognize the discretion traditionally afforded Islamic jurists.

Conclusion In Iran, thus, the system both codifies laws that are to be implemented by judges serving as functionaries, and at the same time, provides a legal framework for judges to act as Islamic jurists in certain kinds of cases and in some categories of crime. The system of codification, derived from Western law, presides over an ossification of the more fluid juristic system, where Islamic scholars make decisions based on vast amounts of study and knowledge of the jurisprudential logics of the shari‘a. If this system is to work, however, it places a burden on the state to train jurisprudents at the bench. Yet, codification provides a basis for transparency and predictability, both of which are important indicators of a just legal system. According to Lawrence Rosen (2004), who has worked on the culture of law in Morocco, Islam is ambivalent to power. The ambivalence to power is apparent in the debates around the notion of judge’s knowledge. On the one hand, power is centralized by legal codes of law, but on the other hand,

Evidence, certainty, and doubt  43 sources of law envisage judicial reasoning as decentralized and case specific and thus, contingent and volatile. Debates about the relationships among Islamic principles, law, and current issues, such as the human rights of children, reveal dynamism in exegesis and offer at least the possibility of achieving practical solutions to current problems, even among the ulama and the judges. These debates are interesting, not only in that they illuminate the pragmatic possibilities within Islamic jurisprudence, but for some other reasons as well. First, implicit in the debates about current problems is the idea that shari‘a, while perhaps providing a basis for finding solutions, is not in practice a limited canon and allows for new developments consistent with a principle of public interest. Second, the debates are increasingly carried out by different groups of people – here a judge, but also lawyers and activists, not necessarily only those trained in the specific methodologies of Shi‘i explication. In this case, Judge Eftekhari’s minority opinion provided the legal reasoning for what was a broader call for reform of Iranian laws on sanctioning of juvenile offenders. Drawing from both legal and jurisprudential sources, the judge’s key intervention rested on the principle of doubt. He used this principle to interrogate the issue of legal maturity and to argue for a more holistic approach that takes into consideration mental as well as physical age. By questioning the issue of maturity, the judge’s analysis also laid the groundwork for further defining and codifying how judges exercise their knowledge as a form of proof, at least in juvenile cases.

Notes 1 According to Articles 72, 94, and 96 of the Constitution of the Islamic Republic of Iran (1982, revised 1989), laws are introduced by the legislative branch of government, but must then be reviewed and approved for conformity with Islamic principles by a vetting body, the Council of Guardians. Once approved, the judiciary then implements the laws. 2 The new codes represented major changes and an expansion of the laws, which increased the number of articles in the penal codes from 497 to 728, an addition of some 230 additional provisions, an increase of almost 50 percent. 3 These are referred to as Article 612 cases, a reference to the authorizing provision of the penal code. 4 Technically the sentence is issued after forbearance, but the court counts the time the prisoner served while awaiting forbearance as time served, and sometimes the prisoner is released upon sentencing or very soon after. 5 Article 160 (2013). Articles 164–173 elaborate on the evidence of confession; Articles 174–200 deal with testimony, and Articles 201–210 construe oath. The penal code makes a distinction between two kinds of oath, qassameh and sogand. While both can be understood to mean “sworn oath,” the former is a form of oath that is verbally sworn by fifty individuals and can only be employed in cases of qisas and diyat. The latter refers to an individual sworn oath for cases other than qisas and diyat. For a study on the historical development of qassameh, see Peters (2002). 6 Arjomand notes that in Shi‘i jurisprudence this form of proof is controversial and considered ancillary to the other forms of proof. He adds that the codification of judge’s knowledge in the 1982 penal code turned it into positive law on par with the other three forms of proof (1988: 187).

44  Arzoo Osanloo 7 Article 211 (2013). 8 Article 212 (2013). 9 Article 213 (2013). 10 This section is revised and updated from a previously published article. See, Osanloo (2016). 11 Critics, both at home and abroad, condemned the Islamic Republic’s practice of executing juvenile offenders, defined as under the age of eighteen. At various points, the judiciary has taken small but significant measures to curb the violations. First, in the early 2000s, the judiciary initiated a mechanism whereby the head of the judiciary was required to sign an order of permission (estizan) before an execution could take place. Using this mechanism, the judiciary head often held off signing the order until the defendant had reached the age of eighteen, thus postponing the death sentence. This was still a violation of the international laws that prohibit the execution of juveniles. 12 Criticisms of the age of maturity abound as the scriptures offer conflicting opinions. In addition, critics cite numerous other age requirements of civic life that regard the age of maturity as eighteen, such as obtaining a driver’s license or passport. 13 Calendar years are not the only measure of maturity. Physical signs may permit the age to be reached earlier or possibly later depending on whether a girl has begun menstruating or a boy producing sperm. 14 This gendered interpretation of youth has proven to be controversial both in and outside of Iran. See for instance, Maryam Hosseinkhah, “The Execution of Women in Iranian Criminal Law: An Examination of the Impact of Gender on Laws Concerning Capital Punishment in the New Islamic Penal Code,” Iran Human Rights Documentation Center, May 7, 2012, http://www.iranhrdc.org/ english/publications/legal-commentary/1000000102-the-execution-of-womenin-iranian-criminal-law.html (accessed December 4, 2015). 15 Article 147 (2013). 16 An important consideration in these cases is that age in shari‘a-based laws (hudud and qisas) is calculated according to an Islamic lunar calendar and not the solar calendar, upon which Iran’s other laws (i.e., ta‘zir) are based. So, for the purposes of hudud and qisas offenses, nine years old is actually eight years and nine months and fifteen years old is really fourteen years and seven months. 17 Article 91 (2013), author’s translation. 18 In such serious crimes as those discussed in this chapter, the penal code sanctions the right to an attorney (Article 48, Iran Code of Criminal Procedure, 2014). In cases involving security or organized crime, the choice of attorney is limited to those approved by the judiciary. 19 “Human Rights Watch: Proposed Penal Code Deeply Flawed in Iran,” Human Rights Activists News Agency, September 13, 2012, https://hra-news.org/en/ hrw-proposed-penal-code-deeply-flawed-in-iran (accessed December 3, 2015). 20  See, for instance, Mohammad Nayyeri, “Criminal Responsibility of Children in the Islamic Republic of Iran’s New Penal Code,” Iran Human Rights Documentation Center, February 22, 2012, http://www.iranhrdc.org/english/pub lications/legal-commentary/1000000054-criminal-responsibility-of-children-inthe-islamic-republic-of-irans-new-penal-code.html (accessed December 3, 2015). 21 Interview, July 15, 2012. 22 Personal communication, September 28, 2012. 23 Interview, July 27, 2014. 24 Personal communication, July 19, 2012. 25 Personal communication, November 5, 2015. 26 For several summers (2007, 2010, 2012, 2013, 2014, and 2015), I had the opportunity to sit in on hearings in Tehran’s criminal court. I observed that the judges frequently employ judge’s knowledge to arrive at a decision.

Evidence, certainty, and doubt  45 27 Article 296 of the new codes of criminal procedure revised the previous fivejudge panel to three judges. A majority decision of two judges determines the sentence. 28 Stare decisis (meaning “to stand by a decision”) is the legal doctrine found in common law legal systems by which courts bind themselves to adhere to previous judicial decisions. 29 The meeting was held on July 17, 2012. 30 I had the minority decision professionally translated and then edited it myself for clarity of expression. The name of the defendant had been redacted from the original. I have placed brackets around clarifying terms. 31 Mohammad Reza Haddadzadeh, “The Principle of Doubt in Iran’s New Penal Laws,” Legal Tracts (in Persian), January 6, 2014, http://rhoghough.ir/#aticle/ 14825 (accessed February 13, 2016).

References Afary, J. 1996. The Iranian constitutional revolution, 1906–1911. New York: Columbia University Press. Arjomand, S.A. 1988. The turban for the crown: The Islamic revolution in Iran. New York: Oxford University Press. Banani, A. 1961. The modernization of Iran, 1921–1941. Stanford: Stanford University Press. Dupret, B. 2011. Adjudication in action: An ethnomethodology of law, morality and justice. Oxford: Ashgate. Osanloo, A. 2009. The politics of women’s rights in Iran. Princeton, NJ: Princeton University Press. Osanloo, A. 2012. “When blood has spilled: Gender, honor, and compensation in Iranian criminal sanctioning.” PoLAR: Political and Legal Anthropology Review 35(2): 307–325. Osanloo, A. 2016. “Women and criminal law in post-Khomeini Iran” in M. Monshipouri (ed.), Social change in post-Khomeini Iran. London: Hurst Publishers, 91–112. Peters, R. 2002. “Murder in Khaybar: Some thoughts on the origins of the Qasāma procedure in Islamic law.” Islamic Law and Society 9(2): 132–167. Peters, R. 2005. Crime and punishment in Islamic law: Theory and practice from the sixteenth to the twenty-first century. New York: Cambridge University Press. Rosen, L. 2004. The culture of Islam: Changing aspects of contemporary Muslim life. Chicago: University of Chicago Press. Schacht, J. 1964. An introduction to Islamic law. Oxford: Clarendon Press. Schapera, I. 1972. “Some thoughts on the anthropological concept of ‘crime’: Hobhouse memorial lecture.” The British Journal of Sociology 23(4): 381–394. Weber, M. 1978. Max Weber: Selections in translation (edited by W.G. Runciman, translated by E. Matthews). New York: Cambridge University Press. Zubaida, S. 2005. Law and power in the Islamic world. New York: I.B. Tauris.

3 The (ir)relevance of self-avowals in the interpretation of criminal evidence Zouhair Ghazzal

In the Syrian penal system, which loosely follows the French model of evidence, a judge constructs evidence based on forensic data, such as interviews of and statements delivered by suspects and witnesses and memos drafted by judges, lawyers, doctors, and other professionals appointed by the court in the course of the investigation, all of which constitute truth claims, as constructed by judges from the vintage viewpoint of their own narratives. Thus, valid statements taken individually would be problematic if limited to forensic evidence. If they do not stand on their own, it is because their validity would only be established through the judge’s narrative (ʿUṭrī, 1993). The narrative itself, as evidenced in the verdict and related documents, gives clues as to how judges interpret evidence, in particular in what constitutes an “acknowledgment” delivered by suspects or witnesses. In fact, quite often the latter would deliver statements to the court which are not intended to “acknowledge” anything but simply to state a truth within a routinized question-and-answer format. Only a judge’s interpretation (or an equivalent judicial authority) would transform a regular statement into an acknowledgment with what could become corroding implications for the case file at hand. On the other hand, suspects and witnesses could deliver frank and direct “avowals” which generally are of a different nature than the usual statements that courts are accustomed to (Dulong, 2001). Moreover, as avowals come in sorts and are delivered differently (say, in a courtroom or the privacy of a judge’s office or in a written statement addressed to a friend or relative or legal authority), their interpretation may pose all kinds of methodological problems to judges or researchers alike (Garapon, 1997). In this paper, we will examine the ambiguity of biographical statements, in particular those that were delivered by inmates in the aftermath of their convictions, without any official request from a judicial authority. But we will not be concerned with the adverse effects that a confession might have on a suspect who delivered it in the proceedings of an investigation. What we want to examine, however, is the moral significance (not to mention necessity) of self-incrimination, even if it plays little or no role at all in the construction of evidence and the delivery of the final verdict. There is, however, another twist to the matter, as judges would be unable – or at the very least feel embarrassed – to deliver a verdict without the accused

The (ir)relevance of avowals  47 openly making an avowal, that is, without the accused delivering their own truth about themselves: I did what you have suspected me of doing, and that is the truth of the matter. That kind of avowal (or confession), in its religious Christian underpinnings, becomes normative in the secular European penal systems of the nineteenth century.1 The avowal opens that unavoidable gap in our understanding of the act and the subject behind the act, an attitude that led to the outsourcing of juridical opinions in the direction of doctors and psychiatrists. “Tell me who you are and why you did it” became the motto of judges toward their suspects and accused. Because such calls to truth could not be answered once and for all, judges had to give up some of their authority in favor of opinions delivered by doctors and psychiatrists. The latter were supposed to know better whether a suspect was fit for trial: what if he or she is insane? What if he or she cannot understand what he or she is accused of? And who is the authority that would deliver with certainty that the accused is unfit to stand trial? A declaration of insanity by a psychiatrist could be good enough to halt a verdict, as required by law (again, following precepts adopted by the French Code pénal since 1832), whereby the accused would be repatriated to a psychiatric institution rather than incarcerated in a prison cell. The Syrian penal system has problems of its own acknowledging the ability of judges to deliver verdicts with the certainty of forensic evidence alone, hence placing itself at the mercy of presidential pardons and mitigating penalties. It thus accepts the French notion of circonstances atténuantes, or the extenuating circumstances that would normally reduce the penalty of incarceration, which in itself represents an admission that judges have difficulties going for the maximum penalty.2 All such uncertainties are enough to explain why it has become normative for judges to seek outside expertise, in particular that of doctors and psychiatrists and, second, why judges tend to avoid maximum penalties, opting in its stead frank and open confessions of culprits who tell the court that they did what they have been suspected of doing all along and that they feel sorry for what they did. What we need to understand is why such open confessions, even if they remain explicitly unacknowledged by the judicial authorities, are nonetheless of prime importance for the proceedings of the case file (Foucault, 2013). One could argue, by tracing the discursive archeology and genealogy of the penitentiary to its European nineteenth-century roots, that the transformation of the avowal as the sine qua non of evidence prior to verdict was probably related to the association of penance (as opposed to pure incarceration) to the prison system. It was not enough to incarcerate suspects for wrongdoing as the prison experience must carry with it the freight of surveillance and rehabilitation: we have to know the subject, who he or she is, for the rehabilitation process to be successful. Penance, in its Christian medieval underpinnings, assumes a process of voluntary self-punishment inflicted as an outward expression of repentance for having done wrong: the prison would then become that public arena for rehabilitation. But it was not enough, however, for “society,” as represented

48  Zouhair Ghazzal by the judge, to know who did commit the hideous act: the avowal of the culprit became normative across the penal system. In sum, practices of self-incrimination have less to do with who did what – or what exactly happened – than with the incorporation of penance with punishment and redemption (Foucault, 2012). What is striking in such instances is the parallelism between the juridical and the medical. “The hideous act that I committed is an outcome of my insanity”: the avowal becomes the key component of the psychiatric process, without which there would be no contract between the patient and medical authorities. Hence the patient must him- or herself negotiate the conditions of incarceration in a medical institution. In similar vein, a suspect, prior to becoming an accused, must (ideally) declare, “I did commit the crime that I was accused of.” In both instances, the act creates the contract, while in civil law the contract only establishes an obligation that is consensual. Behind such exigencies, from both the juridical and medical instances, lies a long history of avowal, one that is associated with “telling the truth” (dire vrai) and, more importantly, “telling the truth about oneself” (dire vrai sur soi-même), both of which could be traced back to their Greek, Roman, and Christian origins. With all the exigencies toward “objectivism” to be found in both the juridical and medical discourses, what brings them together is that strange requirement of the discourse of the culprit/patient on him- or herself. Hence between the judge and the culprit lies what the culprit has to reveal about him- or herself and his or her inner in-depth knowledge. Similarly, between doctor and patient lies the truth that the patient would reveal. The self-incriminating declaration could be understood as speech act, but it exceeds it in the sense that, at least in penal proceedings, it could constitute the tragic climax of court hearings or that crucially missing element from conventional forensic evidence. Avowal is by definition associated with “telling the truth” as it would not make much sense to declare that what is being told is not the truth. The question then becomes to understand the implications behind this practice of telling the truth and how it paves the way toward the penitentiary, as opposed to the mere experience of incarceration and the prison. The broader implication is that of governmentality, understood as the political control of society in its micro relations of power and knowledge in relation to the penitentiary. To wit, an avowal is a “total” contractual obligation between speaker and hearer, in the sense that it is the entire “culture” of a society that is at stake. How people speak to one another, how they make a confession, and how they deny a previous statement are not simply products of a “situated encounter” but transcend to what the archeology of knowledge in a certain culture has produced over its long history. In Arabic, avowal usually stands for iʿtirāf, whose root is the verb iʿtarafa, to avow, or to confess (which tends to be the former in a secular setting like a court hearing). The alternate parallel term is that of iqrār, from the root verb of aqarra, to acknowledge or to declare. However, even though the two terms of iʿtirāf and iqrār seem to be (wrongly) used interchangeably in the

The (ir)relevance of avowals  49 court literature, even by judges themselves, they should not be confused. In fact, iʿtirāf carries that strong sense of “telling the truth” in an exercise of self-revelation; iqrār by contrast is an act of acknowledging a fact through a statement which could be “read” or “interpreted” as such by a judge from a series of statements delivered by a suspect or witness, as transcribed in writing by a legal authority (e.g., police officer, scribe, judge, or doctor). It hence lacks that direct self-avowal. This paper examines how such notions operate in the context of contemporary Syrian courts and how they have been transplanted, adopted, and assimilated to understand their juridical and political connotations in a developing country like Syria. Practices of self-examination, which are internalized and acknowledged by an external authority, or a “hermeneutics of the self” for that matter, tend to be problematic in patrimonial societies where kinship matters and where disciplinary practices are historically not predominant (Ghazzal, 2007). In this regard, contemporary practices where the discipline of the self is at stake manifest a demanding learning curve (Ghazzal, 2015). Some societies on the east Mediterranean, like Egypt, have adopted modern penal codes since the nineteenth century, hence their use of forensic evidence was decades ahead of Syria (Fahmy, 1999). In the Islamic penal tradition, concepts of the discipline of the self, and telling the truth about one’s self, in conjunction with forensic rules of evidence, are not historically known (ʿAwwā, 1983). Let us begin with how a judge in the city of Idlib (north of Syria) commented on the notion of “avowal” (iʿtirāf) in a memo he drafted regarding a young woman who was accused of killing her husband (allegedly helped by her brother) in the late 1980s, problematizing “avowal” into six broad categories. 1 A judicial avowal must be descriptive, personal, frank, and emanating from a free will, while at the same time in accordance with reality.3 2 When there is denial to an original avowal, as was the case here with both prime suspects having denied in the presence of a military prosecutor4 most of what they had stated earlier, the earlier avowal could still stand as valid, in particular if the denial would create an implausible reality, that is, a “view contrary to the accepted reality (khilāf li-l-ḥaqīqa al-rāsikha).” In our case here, it would have been implausible that the victim would have died either in an act of suicide or targeted by assassins other than the two suspects. 3 An avowal must be devoid of confusions, ambiguities, contradictions, and in no need of manipulated interpretations to become intelligible down to its finest particulars (juzʾiyyāt). 4 An avowal could also be implicit (iʿtirāf ḍimnī) in the sense that the suspect avoided any direct acknowledgment of truth, but nevertheless her statements, when interpreted in conjunction with other statements, either by the same suspect or by another witness, could bear the light of a hidden acknowledgment.

50  Zouhair Ghazzal 5 In all these instances, it would be therefore up to the judge to decipher a genuine confession from a faked one, or perceive an acknowledgment in the process of an interview or a police report, and contrary to what the defense attorney in our case here had repeatedly stated, denying an avowal (rujūʿ ʿan iʿtirāf ) is not enough for the judge to drop the confession in question as the denial itself could be devoid of any truth. 6 Finally, the aim of all this tedious but essential work in sorting out avowals and acknowledgments would be to determine for each homicidal case “the cause of the killing (al-bāʿith fi-l-qatl),” considering that “each criminal act is in need of a motive (dāfiʿ).” Even though taken out of context from the factualities of the crime in question, such assertions are nonetheless normative enough to reveal the discourse that stands in Syrian courts when it comes to avowal and, more broadly, evidence. What does it mean that an avowal must be frank and emanating from free will? One obvious interpretation is that an avowal must not be delivered under duress; otherwise, “telling the truth” would become meaningless. But a deeper explanation would look in relation to one’s self – the fact that what is revealed in an avowal is that inner self or, as the judge stated in Item 6, the fact that every crime has a “motive” or “cause”: identifying the killer is not enough if the motive is not there yet. What else would provide us with the motive but the avowal from the one who presumably committed the act of killing? We therefore need to understand why the discourse of the accused must, in the last resource, come at the rescue of forensic objectivity in juridical discourse and why, at times, when the defendant is unable to fill that gap, psychiatric and medical discourse is ready to step into that unbearable silence. Moreover, as the case to be analyzed points out, defendants, at times, in the solitary confinement of their prison cells, draft “letters” on their own addressed to family members, friends, confidants, or even counsel and judges, which on their own pose additional problems in identifying the meaning of avowals as speech acts. Where do autobiographical statements fit? What role should we accord them? But then all those truth claims need to be detected by someone, hence the importance of the judge’s discretionary powers, or as Item 5 states, it is “up to the judge” to make distinctions, to decipher a genuine confession from a faked one, or an implicit avowal from one that seems more straightforward, or whether a denial should be accepted as such. More importantly, it is up to the judge to narrate the “motive” of the crime as without this dāfiʿ the judicial process would be devoid of its substance. In all this, therefore, the judge acts as a “hearer” in the face of a suspect-speaker of sorts, a suspect who at the end of a hearing may have said very little or nothing at all. To relieve himself from such deadlock, the judge may at the end seek psychiatric help for his suspect, but whatever the outcome, all discretionary powers are in his hands.

The (ir)relevance of avowals  51 As the avowal has become in nineteenth-century Europe the centerpiece of the criminal dossier, “telling the truth,” the discourse of the culprit, must come from the subject him- or herself. In sum, the discourse of judges and doctors, though necessary, is not enough. What we need to question, therefore, is, through an analysis of dossiers, how the avowal has become the centerpiece of evidence, what role it serves, and the deadlocks that the system has placed upon itself with such requirements. We will do so by examining a single case of a daughter who was accused of murdering her mother in Aleppo (in north Syria) in the late 1990s. In themselves, the letters that the daughter had drafted to a family member acting as confidant do not have much judicial value, hence it remains uncertain why they were included in the dossier at all or whether they were read and taken seriously. What is certain, however, is that judges tend to seldom explicitly refer to such extrajudicial documents. By giving them importance, I want to question the significance of the techniques of avowal whether they emanate from the accepted norms of the courtroom or whether they are situated on the fringes of such norms. I want to argue that between the approved inside and the outside, there is an invisible bond, one that redeems self-incriminations. However, this does not mean that judges and doctors and other experts know what to do with such confessions or that they are used to better the public’s understanding of the case at hand.

Arson and matricide: the daughter rehabilitates the law In her most sweeping statement to the Aleppo Jināyāt criminal court5 prior to the hearings, the accused stated on May 26, 1996, that6 I confess for having committed the crime of killing my mother. The reason was that my mother kept interfering with my marital life, forbidding me from filing for a divorce from my husband. I was also aware that my mother and sisters were having sex with my husband. I reiterate all previous statements [to the police and public prosecution]. It was in the morning of August 11, 1995 that Fatima Shawwa (b. 1963, maiden name Sari Basha), amid a fight with her husband, decided to burn her house down at the popular neighborhood of Bustan al-Qasr, prior to spending the night at her mother’s home. The mother, who lived on her own, apparently refused to give her daughter any money that night but nonetheless approved of her staying over. Early in the morning, Fatima, who had always complained that her mother treated her unfairly compared to her sisters, went to her mother’s bed and gazed at her. She then cut her throat with a knife she had grabbed from the kitchen. But as her mother resisted, the daughter rushed for a hammer to finish off the mother. The beating was so severe that the skull was savagely damaged with the brain plainly visible. The accused then left her mother’s home and went to her mother-in-law, where she was arrested that same day.

52  Zouhair Ghazzal Besides the daughter’s brief description of killing her mother while the latter was deep in her sleep, the dossier is not that talkative, except for a personal letter that the defendant had drafted to her “paternal cousin (ibn ʿamm),” identified as “my paternal cousin Muhammad ʿAli Shawwa Abu ʿAbdo,” where “Abu ʿAbdo” seems to refer to the cousin’s nickname and where the “cousin” claim could have been real or fictive. In effect, considering that the addressee was no one else but the brother of Sabiha’s own husband, her brother-in-law, Muhammad ʿAli Shawwa, could have been a real cousin, which would make the husband another real cousin too, or else the “paternal cousin” denotation could have simply been a “form of talk,” a way to address someone close. The prison document as drafted (or dictated or commissioned) by Fatima was handwritten, but it remains uncertain whether it was her handwriting, not to mention her style. The undated document was drafted in a combination of official and colloquial Arabic, with occasional spelling and grammatical errors, but otherwise perfectly comprehensible. The stakes are twofold: first, the real purpose behind its inclusion in the dossier and, more importantly, the purpose of drafting such a personal letter from the viewpoint of the actor herself. The first issue, regarding the legality of such documents, is not only a matter of formality but relates to the way social norms receive their codification in the language of law. More importantly, why would the system go beyond the usual statements uttered to the police and prosecution, investigating judge, and court, to more personal statements, apropos documents that seem to have been “donated” by family, friends, or counsels as expressing the accused’s “state of mind” when she was on trial, prior to their incorporation in the official dossier? One thing seems certain as far as biographical documents are concerned: they have been “donated” for a purpose in mind, either to enhance the prosecution side, or that of the defendant, but beyond that all remains uncertain. We have no knowledge how seriously they were taken by decision makers, primarily judges. A note at the upper left identifies the source of the “donation” as Fatima’s brother, Muhammad Jamal Sari Basha (b. 1959), who delivered it to the judicial authorities in April 1996, only a few months after the crime in August 1995, which poses a problem of trust: why did the cousin deliver it to the brother, and what was the latter hoping in its delivery to the authorities? Was he attempting to convey his sister’s insanity, her malicious character, her madness? In the name of God, the compassionate, the merciful After a peaceful salute, To my paternal cousin Muhammad ʿAli Shawwa Abu ʿAbdo,7 hoping that when you will receive this missive you will be in good health, as God wishes. In case you would care to ask, I am doing well, and the only thing that I miss is seeing my dear son Sami Shawwa.8 I also want you to talk to my brothers so that they would drop their lawsuit against me,9 and to get me out of my prison. I cannot take it anymore, as I am on the verge of committing another crime in prison. I am unable

The (ir)relevance of avowals  53 to live here far away from my son Sami, as I am unable to adapt to this situation in such circumstances. Tell them that if they don’t drop their lawsuit against me so that I get out of here, there will be more and more blood,10 and I can do that from my prison, and not only in talk.11 A very, very important remark. My dear Muhammad ʿAli Shawwa. I am going to tell you something I cannot hide anymore than I did, and I am unable to wait until I hire a lawyer, because my material conditions would not allow me to afford a lawyer. After I tell you, I beg you to help me as much as you can. My dad did not die from natural death. My three brothers Muhammad Jamal, Abdul-Qadir, and Yusuf all participated in the killing of my dad. My mum was the one who told me this, and my maternal aunt Sabiha Hamwi and my maternal aunt Majida Hamwi both knew about it. There will also be witnesses. I want you to help me by filing a lawsuit at the Anṣārī police section, the same place where I had been investigated,12 because until now I have not appeared in court,13 so that they would know about it, and in the meantime my case would start to move. And in case my file is set in motion, there is a possibility that I would need a lawyer. From day one I was suspicious of my father’s death, because it was not a natural death. It was Abu Saleh, my sister’s husband, who is also the friend of your brother Muhammad, and who was, first, behind Muhammad’s marriage,14 and second, supported my marriage to your brother Muhammad, [who had informed me of my father’s death]. My mum and my maternal aunt Sabiha Hamwi both told me that there was a mark of a deadly stabbing on his back, as far as I know. But in the meantime I was unable to do anything, except to remain silent, because I did not know what was the reason, until the problem between me and my mother has surfaced. At the very least I have been betrayed (victimized) for killing my mother. She was the victim of her own evil acts, as she had slept with my [two] husbands al-ʿAllaf15 and your brother Shawwa. She has abused me and abused herself, and she is now receiving her judgment (dār al-ḥaqq); regret does not help here. I beg you to take care of my son Sami,16 your brother’s son, consider him one of your kids, and you have from my part all thanks and esteem. I have also sent a letter to my husband,17 your brother Muhammad Shawwa.18 The stunning accusation against the mother, namely that she was having sex with Fatima’s husband Muhammad, first showed up in a brief report dated May 26, 1996 (the same time as this letter), during a routine interviewing of the accused: I fully confess the crime attributed to me, apropos the killing of my mother, and the reason is that my mother was interfering with my marital life, not allowing me to divorce my husband, and also because my

54  Zouhair Ghazzal mother and sisters were having sex with my husband. I also reiterate what I had stated in previous interrogations. Between the two allegations in April and May 1996, the only overlap was the (murdered) mother having sex with Fatima’s (second?) husband. Thus, while the April letter contained far more allegations, in particular apropos of the father’s alleged killing by his three sons and the mother having had sex with Fatima’s two husbands, there was nothing about Fatima’s maternal aunts having had sex with the husband. Fatima thus came with one allegation to the police, then another one to the investigating judge, and a third surfaced in her letter to her cousin-cum-brother-in-law. As all these allegations about patricide, matricide, incest, inter-family sex, and the mother’s refusal to help her daughter financially were stated in different contexts, how should they be read and interpreted? Let us note, one more time, that there is no evidence that any of this material had any effect on the investigation at large. Nor is there evidence that the chief judge pressed to reopen the case of the allegedly murdered father; nor did the judge request any medical or psychiatric evaluation of Fatima for that matter.

The violence of the mute woman and the power of speech The image that emerges of the victimized mother is one of muted violence, a violence that cannot express itself in words or even gestures but only as direct violence – that of the daughter who kills her mother with vengeance by slashing her throat and smashing her head with a hammer. In the universe of this broken family, where the mother-victim was possibly mute, it was indeed everyone who lacked the power of speech. As violence is not something that “erupts” from the every day but makes the everydayness of the lifeworld, those who suffer the most are those women who have to interiorize the codes of honor in society to ensure its biological reproduction. Both mother and daughter have been subjected to male violence, but the daughter, instead of turning against her husband for not supporting her well enough, first burns down “his” home, then goes to her mother’s home, and kills her first thing in the morning, with the excuse that she had failed to materially support her. The failure of the husband to provide emotional and financial support turns against the mother, who is also accused in a confidential letter to the brother-in-law of having “slept” with the husband. With her shocking allegation that her dad “did not die from natural death,” Fatima did not hesitate to identify the killers: her brothers. No reason is furnished for such horrendous parricide but only silent witnesses: the mother, two maternal aunts, and additional unnamed witnesses. The mother and her sisters were already held guilty for keeping such a monstrous secret all those years (no precise date is given) before being accused of another monstrosity: having sex with the husband. In effect, in the letter that was appended to the dossier, only the mother was accused of illicit sex

The (ir)relevance of avowals  55 with the husband, while on another occasion, in the presence of an investigating judge, it was the mother and her sisters. By writing her own text, albeit in a letter form to a specific family addressee, the murderer becomes author of her crime and text. In her various depositions to police, prosecution, and investigating judges, Fatima must have felt constrained in her language. Instead of the official language of the courts, and their claims of objectivity in their handling of testimonies of witnesses and suspects, Fatima rewrites her own crime-as-destiny and now posits herself as author of both crime and text. She reclaims her “voice” in an ephemeral manner. What her own self-prescribed narrative enabled her to do was to trace her actions back to her father’s parricide. Note that the latter serves as justification for her mother’s matricide but rather as leeway to textually construct the mother’s monstrosity from its very beginnings: the mother maintained her silence all those years apropos her husband’s parricide, as if she had been an accomplice in the very act allegedly perpetrated by her own sons. The father was absent for the simple reason that he was allegedly killed by his three sons. The daughter for her part stood by her father’s memory and came to his rescue after a long, tortuous silence in the wake of her mother’s murder. In other words, the daughter eliminates the mother as the person in the family who made contracts look ridiculous: first, by remaining silent over her husband’s murder (which she may have commissioned and witnessed) and, second, by having sex with a man who happens to be her son-in-law. State law, which takes for granted that family honor must be protected by men, is blind to men’s own vulnerabilities and to the financial, economic, emotional, psychic, and sexual distresses that men and women are subject to in a developing society where old patriarchal values are constantly challenged. By killing her mother, the daughter rehabilitates her father’s memory, replaces him symbolically at the head of the household, accepts her fate as a betrayed and victimized woman, and restitutes the law in domains that family members took for granted and were oblivious to. In the image of the law, women can be tyrants because they dishonor the family through illicit sex or illegitimate affairs with married or unmarried men. In Fatima’s mindset, however, a woman like her mother can rise as a tyrant for the simple reason that she had instituted the law of the arbitrary, as she was unable to discern right from wrong, and made every contract impossible. At some level, Fatima’s story is not unlike that of Pierre Rivière, whose case was analyzed by Michel Foucault and his team: “Never again! In my family this tyrant is my mother; she renders every contract void of meaning; she makes my father forfeit his rights and loads him with dues” (Peter and Favret, 1982: 192). In both instances, Fatima and Pierre, their acts were not “pathological” per se but aimed at the social symbolic order, the order of the contract: By killing [my mother] I am setting an example so that the law may be restored, the contract honored, and tyranny overthrown. I am thus

56  Zouhair Ghazzal executing the justice of God. Human contracts are monstrous, I appeal to another justice, of which I, monster in semblance, am the providential executor. (Peter and Favret, 1982: 192–193)

The emergence of the criminal spectator Fatima’s letter to her brother-in-law involves more than a parading to justice, assuming, of course, that this was what she had in mind. This was a young woman with enormous grievances in her heart and allegations of long-term abuses. Yet, the letter does not manifest any remorse toward her mother. In the absence of a historical genre where grievances would be expressed, where the politics of denunciation is at stake, where emotions and suffering receive private and public attention, we are left with similar self-incriminating statements from other cases and inmates (Ghazzal, 2015: chapter 4). Many manifest that urge to pose oneself as a spectator to the crime at hand, with letters drafted with that internal fury at expressing oneself, of stating a truth that has not been yielded yet, as if the judicial authorities failed to elucidate the truth of crime: it all must be stated all over again, with that personal voice – and in writing. Even though there were addressees, to whom were those missives really addressed? Let us assume that a crime should be set within a triangular relation rather than be limited to the simplistic duality of murderer and victim: there is always that third-party invisible addressee which the murderer (unconsciously) had in mind and which turns out more crucial for the killer than the victim him- or herself. It is, indeed, that third party which refuses to accept the feeling of guilt for the crime, hence refuses to accept him- or herself as addressee. The addressee could be an absent father, a dominant mother, a lover, or a cousin who was a first love, but it could also be that “community” out there to which we belong and acts as the big Other. I want to argue that whenever the culprit doubles, in the solitude of her prison cell, as a writer–narrator of the past events that led to the crime scene, there is another triangular structure at play in parallel to the more general one among the murderer, her victim, and the addressee – with the two triangular structures not necessarily unrelated. In the case of Fatima, the crime unfolded between herself and her mother, but the addressee was no one else but that absent male which she has been longing for since her father’s sudden death. It could have been the same person to whom the letter was addressed, namely, the cousin-cum-brother-in-law, a male from the family whom she had fully trusted. The letter poses itself as a second layer to the crime as it doubles as text to the crime scene. In the two triangular structures, that of the crime and that of the letter, the addressee is the same: the brother-in-law as the absent male. The fact that the latter was the one to have handed in the letter to Fatima’s brother, who in turn delivered it to the judicial authorities, could be an indication that he refused his status as addressee – of both crime and letter. The question therefore amounts to the

The (ir)relevance of avowals  57 following: why did Fatima feel that urge to textualize her crime, to double her criminal act into a letter addressed to her cousin? What does the letter exactly do? How does it function? What was its purpose? The first triangular structure is caught between culprit, victim, and addressee (spectator), in which the assailant disengages from her act, only to pose herself as spectator to the very murderous act that she had committed. Now the culprit, placed in the loneliness of her prison cell, watches the crime scene as a spectacle from a distance. She therefore poses herself as spectator to the spectacle that she had created for herself and others. As spectator she looks at her own suffering from the distance of her prison cell, portraying herself as having been victimized since her suffering was the outcome of such persecution. The crime itself was therefore portrayed as a process of redemption from long-term suffering. If the mother was the oppressor, the beneficiary was no one else but the brother-in-law. In the second triangular structure, the murderer sets herself as spectator, not so much, however, of the crime that she had committed but rather to the suffering she had endured at the hands of her mother, husband, and brothers; she identifies with the father as someone, like herself, who had been victimized at the hands of his wife and sons then murdered by them. Fatima sets herself as spectator to her own suffering and those of her father, which were inflicted by the same people. What is unusual, however, is that Fatima sets herself both as spectator and narrator: in other words, she doubles as spectator and impartial narrator of her own suffering, providing a rationale for the crime she committed. As the French sociologist Luc Boltanski has persuasively argued, “suffering from a distance” assumes a “topography of interiority,” which probably began to materialize in the European space in that big shift between the eighteenth-century ancien régime, in which trials by ordeal and public executions were fairly common, and post-revolutionary France where, with the emergence of a more open bourgeois public sphere (Habermas, 1991), “impartial observers” expressing their grievances and outrage became fairly common (Boltanski, 1993: 92ff). The “impartial observer” operates within a division which assumes, on one hand, “a self that acts” and “a self that observes” on the other. But then even such division cannot operate in the real world of the public sphere in a clear-cut fashion: if you do things with words, as J. L. Austin (1975) famously stated, then the distance between the impartial narrator and the person who acts is not that great – the two can in fact conflate into the same person. This impartial observer, which in a personal name publicly airs a grievance or an outrage, grew in Europe in the eighteenth and nineteenth centuries in a variety of forms (Ruby, 2012), beginning with the modern European novel constructed with a single narrator19 (which in its later incarnations evolves as a stream-of-consciousness or multi-narrator techniques)20 or in the biographical essay as “a conversation with oneself,” not to mention the opinion-editorials in newspapers and journals. In all such textual approaches, in spite of their variety and differences, the external narrator emerges as an

58  Zouhair Ghazzal active element struggling in a world of his or her own making, together with a reflexive self, which observes such action. This reflexive narrator therefore constitutes the third element in the triangular structure in Figure 3.1 as she watches both spectator and spectacle:

spectator

spectacle

reflexive narrator Figure 3.1  General theory of the modern spectator

Compared to which we get the triangular structure in Figure 3.2, which serves as a common matrix for crime in general:

murderer

victim

third-party addressee Figure 3.2  The spectator in relation to a crime scene

What is unique about all those individuals with criminal records, and which in the solitude of their prison cell draft memos addressed to family members, relatives, friends, judges and lawyers,21 is that they take an active, primordial role in both triangular structures. In Figure 3.1 the actor is a criminal who murders her victim while eying a mysterious third-party addressee, who would refuse her role as recipient with guilt feelings. In Figure 3.2 that same actor now narrates her tragic fate, posing herself as an external reflexive narrator with a consciousness sympathetic to the sufferings of others, including the victim whom she sacrificed in her criminal act. Compared to narrators who emerge in the public sphere with voices sympathetic to the sufferings of others, criminal narrators remain confined within the boundaries of their penitentiary world; that is, nothing circulates of their tragic fate outside the dossier that incriminates them, even though

The (ir)relevance of avowals  59 nothing excludes that they may metamorphose into a cause célèbre either through their own work or the work of others (writers, filmmakers, artists, journalists, or researchers in the humanities and social sciences).22 What is unique about such criminals who metamorphose into narrators of their own crimes is that they exercise the art of biography as a confessional genre whose final aim is to make public the very crime that they had committed. In other words, they take the role of “the voice-over flashback narration” common in film noir (Pippin, 2012). Such self-incriminating genres might overlap with literary and artistic works in society at large, hence the privacy of the inmate and her sufferings that could be echoed in the world at large. What is tragic about the Syrian prototype of inmates who all of a sudden, and unexpectedly, turn into narrators23 of their own crimes is the absence of connection to the outside world. Those are inmates who exercise the art of biography, airing their confessions and grievances to friends and relatives in writing, posing as narrators of their own crimes yet cannot possibly receive recognition from the outside. There is very little in Syrian society that points to any public attention to criminals: crimes are neither reported in the statecontrolled media nor in works of art.24 The criminal writes a biographical statement to a friend, relative, or judge and in this very act is able to look at herself both in the role of spectator and spectacle – the gaze of the impartial narrator, which in this instance is interiorized, creating a subject fully aware of her actions and misgivings. But the conflation of roles between spectator and self-introspection gives the narrator the opportunity to construct a theater of representations from multiple viewpoints in the name of the person who is still recovering from the traumatic experience of crime. When lawyers and judges draft their memos and reports, they also act like impartial narrators situated in a triangle between the spectators and the spectacle, even though in their case the “impartiality” is not so much determined by different viewpoints as much as by the norms of justice.25 Moreover, judges are not supposed to show their “inner views,” hence their reports and verdicts are drafted in that codified and carefully mastered language of the law. But if the biographical statements of culprits show anything, it would be, indeed, that inner voice, sometimes narrated as a dialogue with a real or imagined other: it is that introspectiveness, which judges typically eschew, which constitutes the heart of biography. One can speak of “vicarious possession” of that observer which absorbs the acts of both spectator and patient (the one who suffers), which is precisely what judges want to avoid. What we can see in Fatima is someone who would be qualified as “hysterical” in the sense that she became absorbed by the tragedies of her family, whether real or imaginary, which she addressed in her criminal act. In the historical shift between the spectacle of public executions of the absolutist régimes, where spectators were supposed to contemplate the aura of the execution (hence, behind it, the will of the sovereign) and modern spectacles with their triangular structures, where compassion and pity for the suffering of others are crucial for a self-reflexive observer, stand the lives

60  Zouhair Ghazzal of infamous people like Fatima (Boltanski, 1993: 66–67; Foucault, 1975). If there is a parallel between the end of public executions, the rationalization of justice, and the desire to find a cause and justification for the crime, the persona of the criminal, that abnormal individual, becomes central for both the judicial and medical authorities. While Boltanski (1993: 92), speaks of a “doubling of the spectator (le dédoublement du spectateur),” which doubles as a self that acts and another self that observes, Foucault claims a doubling of judges in their judiciary and medical functions, a doubling that is necessitated precisely by the requirement to understand and rationalize the behavior of that anomalous persona of the criminal, hence the panic of judges (and doctors) at those “crimes without reason (crimes sans raison).” We are thus confronted, in the modern age, with that “topography of interiority,” where a person could multiply into an unlimited series of enunciative functions. When Fatima wrote in the privacy of her prison cell to a beloved one, she was attempting to represent her crime in ways that the judicial system could not have anticipated. A criminal is indebted to society – and to his or her family – when kin matters. A homicide is a crime because a life has been taken away. But it is also a debt to society because a life has been taken away that cannot be compensated in monetary terms, punishment, or otherwise. Strictly speaking, a lost life could only be compensated by another lost life, hence the institution of feud in so-called primitive societies known for their intergenerational feuds (Graeber, 2012[2011]). In modern societies where state institutions monitor crimes and homicides, the debt is paid back to society through punishment and incarceration. But for Fatima to pay her debt to society (and her family), it was not enough to serve for many years with hard labor incarcerated in a prison cell or even to be placed on death row. What she wanted, and what she strived for, was to narrate her own truth in her own voice, even if that meant someone else drafting that letter on her own behalf. What mattered was that she had to narrate her own truth outside the machinery of justice.26

Notes 1 Anglo–American common law systems tend to place stringent limits on selfincriminating statements, even if delivered in a courtroom, in particular if they are not supported by enough forensic evidence. 2 In the Syrian system, circonstances atténuantes is referred to as al-asbāb almukhaffifa al-taqdīriyya, denoting the reasons that would lead to extenuating circumstances (ʿUṭrī, 1993; Ghazzal, 2015). 3 Emphasis in bold and italics is mine. Punctuation from Arabic has been slightly altered for purposes of clarification. 4 Cases where one or more suspects were serving in the military may additionally need a military prosecutor, at least in the initial stages of the investigation. 5 The contemporary meaning of jināya is still in line with its old classical meaning of “crime,” broadly understood as a serious offence against someone. In Islamic jurisprudence the highest crime is against another person’s soul (nafs), whose punishment is the payment of blood money, or the diya.

The (ir)relevance of avowals  61 6 Aleppo Jināyāt file 701/996; final ruling missing. 7 Muhammad ʿAli was the brother of Fatima’s husband, hence her brother-in-law. If, as she claims, he was her “paternal cousin,” then Fatima and her husband must have also been paternal cousins. There is a possibility, however, that they were “cousins” only in the figurative sense of the term, that is, not as a real blood relationship. 8 Referring to both son and cousin by their full names has something impersonal about it, diminishing its intimacy, as if the letter was meant to be read not by the recipient himself but by some anonymous judicial authority. 9 The brothers had apparently filed a civil lawsuit against their incarcerated sister, requesting monetary compensation for the death of their mother. 10 In the original Arabic: “I will arrange for them seas of blood – not a single sea only.” 11 All emphasis in bold and italics is mine. 12 For the killing of her mother. 13 The referral report only came on May 7, 1996, the following month after the present letter was deposited in the case’s dossier. The likelihood is therefore that the court’s proceedings were set either for late 1996 or early 1997. 14 Since Muhammad had two marriages, and Fatima was the second wife, who apparently coexisted with the first, it is uncertain which marriage is referred to here. 15 In all likelihood he was Fatima’s first husband. 16 The teenage son appears as the only male hope in a world where the elderly males have all betrayed their cause and manhood and where women have observed such callousness from a distance. 17 This letter has no trace in the dossier I consulted in the late 1990s. 18 Punctuation has been modified from the original Arabic to make room for a more comprehensible text. 19 The prototype here is Laurence Sterne’s Tristram Shandy. 20 For example, in the works of James Joyce and William Faulkner. 21 In liberal countries with a free press (e.g., Lebanon), inmates may also grant interviews to journalists, newspapers, and other media outlets. Some write memoirs and books, which could be published while still serving their sentences or upon their release or posthumously. 22 As exemplified in the work of Truman Capote, In Cold Blood, and Norman Mailer, The Executioner’s Song, both of which narrate single criminal incidents that became quite famous for their atrocity – Capote’s novel has inspired two fictional films thus far. How far a criminal persona could metamorphose into a cause célèbre obviously depends on the level of freedom in a particular society. What the American case shows is that there are no visible limits either to the fictionalization of criminals in works of art or in the more populist media outlets. 23 In some cases the crime is never admitted, hence it keeps its status as an alleged crime: the alleged criminal is only a narrator but not a confessor. 24 Including the musalsalāt, the Syrian TV series, which have rivaled the Egyptian and Turkish series and which have metamorphosed into a popular phenomenon across the Arab world. 25 One can add here the notion of the Lacanian blot, which in the context of the triangular structures in Figures 3.1 and 3.2, makes it impossible as spectator or impartial narrator to “see” the Other without distortion: one is not simply limited by knowledge (what one knows and what is not known) but, more importantly, by the gaze of the Other, which I, as a perceiving subject (ego) cannot see what it sees in me and vice versa. Moreover, the acting subject is not only a subject of knowledge but one who acts with a lack of meaning, purpose, and totality – and within the confines of a superego confronted to the big Other of justice and society.

62  Zouhair Ghazzal 26 The Lebanese novelist Muḥammad Abi Samra has recently published a collection of essays of Syrian expatriate “voices” based on individual experiences of encounters with judicial or political authorities (Abi Samra, 2012).

References Abi Samra, M. 2012. Mawt al-abad al-sūrī: Shahādāt jīl al-ṣamt wa-l-thawra [The death of Syria’s eternity: Testimonies of the silence and revolution generation]. Beirut: Riad el-Rayyes Books. Austin, J.L. 1975. How to do things with words. Boston: Harvard University Press. ʿAwwā, M.S. al-.1983 [1979]. Fi uṣūl al-niẓām al-jinā’i al-Islāmi. 2nd ed. Cairo: Dār al-Maʿārif. Boltanski, L. 1993. La souffrance à Distance. Paris: Gallimard. Dulong, R. (ed.). 2001. L’aveu: Histoire, sociologie, philosophie. Paris: Presses Universitaires de France. Fahmy, K. 1999. “The anatomy of justice: Forensic medicine and criminal law in nineteenth-century Egypt.” Islamic Law and Society 6(2): 224–271. Foucault, M. 1975. Surveiller et punir. Paris: Gallimard. Foucault, M. 2012. Mal faire, dire vrai: Fonction de l’aveu en justice. Louvain: Presses Universitaires de Louvain. Foucault, M. 2013. La société punitive: Cours au Collège de France, 1972–1973. Paris: EHESS – Gallimard – Seuil. Garapon, A. 1997. Bien juger: Essai sur le rituel judiciaire. Paris: Éditions Odile Jacob. Ghazzal, Z. 2007. The grammars of adjudication. Beirut: Presses de l’Ifpo. Ghazzal, Z. 2015. The crime of writing. Beirut: Presses de l’Ifpo. Graeber, D. 2012 [2011]. Debt: The first 5,000 years. Brooklyn: Melville House. Habermas, J. 1991. The structural transformation of the public sphere. Boston: The MIT Press. Peter, J.P. and Favret, J. 1982. “The animal, the madman, and death” in M. Foucault (ed.), I, Pierre Rivière, having slaughtered my mother, my sister, and my brother . . . A case of Parricide in the 19th century. Lincoln and London: University of Nebraska Press, 175–198, originally published by Gallimard (Paris) in 1973. Pippin, R. 2012. Fatalism in American film Noir: Some cinematic philosophy. Charlottesville: University of Virginia Press. Ruby, C. 2012. La Figure du spectateur. Éléments d’histoire culturelle européenne. Paris: Armand Colin. ʿUṭrī, M. 1993. Qānūn al-ʿuqūbāt. Damascus: Muʾassasat al-Nūrī.

4 On intentionality in Mafia crimes Deborah Puccio-Den

What constitutes evidence and proof in Mafia crimes? And what part does intentionality have in such criminal acts? To answer these questions, material will be drawn from legal and judicial sources on the Cosa Nostra.1 This Sicilian Mafia served as the reference for Italian jurists trying to understand Mafia-type organizations and characterize their activities as criminal offences. Besides being, as we shall see, crucial to defining the “crime of participation in a Mafia-type organization” (associazione di tipo mafioso), introduced by the Rognoni-La-Torre Act in the Italian Penal Code in 1982,2 the concept of intentionality lies at the center of the judicial categories (in particular, “external complicity”, concorso esterno) that were then worked out to sanction actions that abetted the Mafia but without involving membership in the Mafia in the strict sense of the word. During my observation of the “Aiello trial” (2006–2009), from the preliminary investigation till hearings, I came face-to-face with the difficulties public prosecutors encountered while trying to formulate the charges to press against the presumed perpetrators of Mafia crimes. The choice of this trial for my fieldwork turned out to be well-founded since it involved all sorts of charges, ranging from connivance to active and willing complicity with the Cosa Nostra, related to Mafia crimes. This case even served for the drafting on January 18, 2008, of a judicial opinion by Vittorio Alcamo, a magistrate, about what distinguishes “as a matter of law and of fact” the offense of “participation in a Mafia organization” from “external complicity” or favoreggiamento (helping someone to elude police investigations), which can be simple (semplice) or, if the help is given to the Mafia, aggravated (aggravato). Diverging opinions among prosecutors kindled heated arguments that spilled over into courtrooms.3 While concentrating on intentionality in Mafia crimes, I would like to place legal arguments in parallel with criminal ideas and practices as reconstituted through interviews with two pentiti (Mafiosi who became “collaborators with justice”) whom I met in the Central Service of Protection of Witnesses in Rome in November 2009 and December 2010. My intent is to shed an emic and ethical light on the question of intentionality.

64  Deborah Puccio-Den

Mafia crimes and intentionality The question of intentionality lay at the center of discussions about how to legally characterize a “Mafia crime”. Investigators, magistrates and lawmakers were faced with crimes for which the motives were obscure, not only because they were hidden under the law of silence (omertà, the Mafia’s code of honor) but also because they were organized so as to clearly separate the principal, who gives the order, from the agent, who executes it.4 The campaign against the Mafia, to be effective, could not just sanction criminal offenses as such; it had to trace criminal actions back to the murderous intent and reconstitute the material and logical relations between principal and agent. As my interviews with four members of the Sicilian Mafia who had “repented” (i.e., turned informant, “collaborator with justice”) suggest, the distinction between principal and agent is not simply a precaution in view of a cover-up to make the killer’s motives inscrutable during investigations. The Cosa Nostra requires of whoever wants to join that they obey orders by carrying out actions with neither intent nor reason. Before formal initiation, the qualities that turn the postulant into a “man of honor” – the phrase whereby members of the Cosa Nostra refer to themselves – are tested through the crimes and offences to be committed without showing any sign of hesitation and, above all, without asking questions. As he silently learns crime, the postulant, sacrificing his own discernment, is trained to experience his membership in the Mafia as a subordination. For example, Salvatore Cucuzza (interviewed in November 2009, died in 2014) recalled having committed his first murder well before his official admission into the Cosa Nostra: he shot a street vendor in cold blood without knowing, not even vaguely, why someone selling fruit and vegetables had to be killed. Initiation, as the informant Francesco Paolo Anzelmo (interviewed in December 2010) pointed out, is also the occasion when the postulant “opens his eyes”, as he might be let in on what happens behind the scenes in various affairs, including murder. However nothing will be disclosed to him about the crimes he is being asked to perpetrate. Prison, too, is a place where information is passed between veterans and new recruits or even between men of honor of the same rank but from different “families”. Mafiosi have to respect the law of silence toward outsiders but are obliged to tell the truth to each other – an ideal in contradiction with the activities and concealment practices that certain clans adopted as part of their strategy, in particular the Corleonesi during the Mafia wars in the 1980s. In this world of crime, the rules about what to say and what to keep for oneself are very complicated: the reputation of a man of honor, as well as his survival, depends on knowing how to pull the ropes. Not asking anyone about the reason for a murder (assuming one exists), not even trying by oneself to find a reason for committing a murder, such is the very essence of membership in the Cosa Nostra: unconditional commitment to the organization.

On intentionality in Mafia crimes  65 The initiation ceremony that the Fratuzzi (“little brothers”) in Bagheria, a town in Palermo Province, conducted at the end of the 19th century, clearly illustrates the parallel drawn between murder and initiation: The neophyte was brought into a big hall where a Christ was hanging. He was given a pistol and had, without shaking, to shoot it to show that, just as he had fired a shot at the Lord, he would have no problem killing his brother or father if the ‘society’ wanted him to. Afterwards, the candidate became a fratuzzo.5 This borrowing from the sphere of religion, which still occurs, is linked to the fact that membership in the Mafia is a form of “spiritual kinship”. The “brothers”, who had mixed their blood with the ashes of an image of the Virgin Mary (burned in the hollow of their hands), became subject to the same incest taboo as blood kin.6 A “godfather”, often an uncle on the father’s side, introduced the postulant into the Cosa Nostra – let us not forget that in southern Italy, the godfather, through baptism, causes the child to be born a second time, socially and spiritually (D’Onofrio, 2004: 61–62). This permeation by the religious sphere accounts, too, for the choice of the Virgin of the Annunciation as Cosa Nostra’s patron and guardian of its rites of initiation. The ties of brotherhood created through this non-carnal mother override bonds of kinship. In fact, when the organization sentences someone to death, it prefers giving the execution order to a member of the victim’s family (as suggested by the Fratuzzi ceremony). What makes this practice, abolishing as it does any feelings of humanity in the murderer, possible is probably that men of honor perceive, or at least describe, adherence to the Mafia as an absolute belief, an ideology, a personal conviction that expels any doubt. They thus dissociate themselves from their actions, justifying their acts by claiming that they do not commit them in their own interests but for the organization’s sake, in the name of the values or ideals in which they “believe”. This stance does not, of course, hold up in the courtroom where the accused are held responsible for their actions as individuals.7 When a Mafioso must, before a judge, account for the actions that he committed “without any intent”, one possibility is to abjure his belief, like the aforementioned pentiti,8 and thus come to doubt the ideology underlying his actions. However the falseness of a belief or the illusory nature of a value or desire does not keep the belief, value or desire from being a reason accounting for an action (Davidson, 2008: 120) and thus serving as the grounds for attributing the action to the person who did it. A Mafioso, whether or not he has turned informant, whether or not he had the intent (a reason concerning him and belonging to him) to kill someone, is – once he has killed someone intentionally (by consciously pursuing plans to perpetrate the murder) – to be recognized as guilty. He has to serve a sentence. Nonetheless, the lack of a plausible motive by the agent who executes the crime leads magistrates to look elsewhere for the primary motive.

66  Deborah Puccio-Den

Decision-making in the Cosa Nostra In the Cosa Nostra, initiatives for committing crimes always came from higher up. At the top of this intensely hierarchical system of domination was a “commission” that made decisions about the operations to undertake. This body, which assembled the bosses of districts (capimandamento) in Palermo or the Sicilian region,9 rendered verdicts for punishing violations of the Cosa Nostra’s rules. Application of the punishments was assigned to “soldiers” or placed in the charge of a “fire group” belonging to the Cosa Nostra’s elite. According to the ideology, the people killed are not personal enemies but individuals harmful to the organization because they violated its rules or menaced its prestige, resources or power. How could prosecutors trace a crime perpetrated by the Mafia up to its instigators when faced with low-ranking Mafiosi who knew nothing about the ramifications of their own acts or with a group charged indistinctly with a series of murders? Above all, it was necessary to prove that this decision-making group existed. This task fell on anti-Mafia magistrates, who had to conduct investigations in a world steeled in omertà and shrouded by conjectures about the Mafia’s nature, structure and workings. Our glimpse from the inside at operations mainly comes through the information provided since the early 1980s by the aforementioned pentiti (Puccio, 2001). Through their testimony, hundreds of un-elucidated murders perpetrated in Sicily since the 1960s were set down to a single cause, namely, the criminal purpose of the Cosa Nostra’s leadership. Thanks to confessions by Tommaso Buscetta, Antonino Calderone, Salvatore Contorno, Francesco Marino Mannoia and a few others who collaborated with justice, the judges Giovanni Falcone and Paolo Borsellino were able to begin trial proceedings against the Sicilian Mafia. In comparison with previous legal actions against Mafiosi, this socalled Maxi Trial innovated by indicting bosses for having made the plans for crimes that accounted for hundreds of murders in Sicily during what has been called the second Mafia war.10 The ground for the Maxi Trial was the legal concept of joint responsibility based on the principle of the “equivalence of causes”. Article 41 of the Italian Penal Code esteems as equivalent the intent to kill and the ensuing act under condition that the intent is formulated as an actual order. This principle bears a striking resemblance with the Mafia’s own internal conception of its crimes: relative indifference about the actual role played in a murder (gunmen, lookouts, drivers of the escape vehicle, persons who stole the vehicle, etc.), the interchangeability of these roles (the person giving the order might become the actual killer11) and dilution of responsibility within a “fire group” or even the whole organization. The organization’s very name, Cosa Nostra (literally: “our thing”), connotes a blurring of identities and intents, even for the purpose of murder. From an anthropological viewpoint as formulated by Perig Pitrou (2012: 97–98), prescription is the “first action performed in an itinerary”; and therefore, the order to kill, the impetus of an action, can be seen as the

On intentionality in Mafia crimes  67 first act leading up to murder. In this “delegation of agency” (Pitrou, 2012: 97–98), the actual perpetrator is the principal since the agent is only obeying this higher authority. Both legal writings in this field and the explanations provided by the persons involved present the verbal act at the origin of the murder as consubstantial with the murder itself. Intention and action are brought together by taking into account the full sequence of acts leading to a murder and thus superposing on the crime scene what Roberto Scarpinato, the most famous anti-Mafia judge in Italy, has, in an appeal to etymology, called the obscene12 (Lodato and Scarpinato, 2012: 31): what stays hidden, what is off scene, ob-scenum. Prosecutors had, therefore, the task not just of backtracking from spilled blood and words so as to reconstitute the succession of scenes leading up to a murder but also of producing the material and verbal evidence that constitute proof. It is no easy task to return to the initial act of speech when investigating a world where the law of silence reigns.

Proof of a Mafia crime How do we establish proof in a Mafia-related crime? Article 416 bis, introduced in the Italian Penal Code in 1982 to define “participation in a Mafiatype organization” (associazone di tipo Mafioso), provides for from three to six years of incarceration for members of such an organization. What is sanctioned is membership, since it implies the intent to harm society, even whenever this malicious intent is not realized through any malevolent act (murder, aggression, theft, etc.). The postulate is that partners in crime be punished not for their material involvement in a specific criminal act but owing to the purpose to commit crimes, as implied by membership in the Mafia. This postulate hardly differs from the type of commitment made by neophytes when, during initiation, they declare their readiness to work for the Cosa Nostra (and, if need be, carry out criminal actions) and accept that their bond of subordination and obedience to the Mafia should override any other allegiance. Passed in 1982, the Rognoni-La-Torre Act did not come out of an insider’s understanding of this world of crime – such knowledge would be acquired later, thanks to the pentiti. The grounds for this law were, at the time, behaviors observed in Sicily that were socially identified as being of a Mafia-type – even though the existence of the Cosa Nostra as an actual organization was still a matter of conjecture (Puccio-Den, 2012). These behaviors are of interest to us because they bring the relation between intent and act into play. Three behaviors were retained as being “typical” of a Mafia organization in comparison with an ordinary criminal conspiracy: intimidation, subordination and omertà. Article 416 bis considers as a Mafioso any person who uses or “intends to use” the Mafia’s force of intimidation, without necessarily committing an actual act of violence, or even intimidation, but simply by drawing profit from the organization’s capacity for frightening, a capacity with roots in the “public’s memory” of its malicious acts (Turone, 2008: 115–118).

68  Deborah Puccio-Den This comportment might be manifested as a mere attitude: “even in the absence of words or gestures that are unambiguously intimidatory”. Threats might be expressed latently through “advice from a friend, a silent presence, simple warnings” (Turone, 2008: 20–21). This capacity for intimidation is part of the organization’s “joint legacy”, from which every one of its members profits (Turone, 2008: 120). The two other Mafia-related behaviors, or methods, stem from the first: systematic intimidation creates the conditions for subordination and omertà, which obstruct the individual’s relations with public authorities. Lawmakers did not draw a profile of Mafiosi as violent individuals but, instead, as persons who silently, latently, insidiously menace society with potential violence, without it necessarily becoming actual. Obviously, this aura of intimidation has to be verifiable; proof (nigh impossible) of the mere intent to intimidate does not suffice (Turone, 2008: 118). Assuming that an agent is a reflexive subject who belongs to a community of such subjects (or “interpreters”), detecting intentionality is a hermeneutic, interactive operation for attributing meaning (Davidson, 2001). This places us in the realm of the explanations and rationalizations advanced by someone to justify what he or she has done. These explanations imply a set of beliefs, desires, moral conceptions, social conventions and cultural values that enable people to define an intentional act as an action accomplished “for a given reason”. This reason leads to redescribing the action and its meaning. The assumption here is that what people say about their acts necessarily corresponds to what they believe about them. Otherwise, we are dealing not with a disclosure of explanations or reasons but with an imposture, a lie for dissimulating the link between action and intention to shift focus toward other motives, which are easier to mention because they are less likely to be as severely punished. The question of dissimulating one’s real intentions (not new in the philosophy of action, see Davidson, 2008) has also cropped up in the legal practices of the institutions that judge violent crimes. It becomes even more incisive for persons who, like “collaborators with justice”, are summoned to reconstruct events that might reach back several dozens of years (before they turned witness) and to explain their intentions – intentions not at all explicit at the time of the facts, when the man of honor lived under another code (omertà) and another “regime of action” (subordination). For all the aforementioned reasons, the difficulty of establishing proof through testimonies in the trials of Mafiosi led to the adoption of probative strategies and investigatory techniques that took advantage of the advances made in technology at the end of the 20th century: wiretapping and hidden microphones for eavesdropping. Thanks to the evidence thus collected, magistrates were able to reconstruct Mafia-related social interactions with the help of network analyses.13 Investigators were thus able to verify what they had suspected for a long time; namely, actual members of the Mafia maintained relations with persons who though not affiliated with the Mafia, were contributors in various ways to its prosperity. This sparked controversy among state prosecutors who were investigating Mafia crimes. How

On intentionality in Mafia crimes  69 do we transpose findings of this sort into the judicial realm by charging prominent professionals and politicians with being part of a Mafia-related criminal conspiracy?

The Cuffaro controversy The “Aiello trial” (2005–2008) presents us with an arraignment of 19 persons indicted on counts corresponding to all forms of involvement in Mafia-related crimes, ranging from charges of “participation in a Mafiatype organization” through “external complicity” to favoreggiamento (helping someone elude police investigations, “simple” or “aggravated”). The debate in legal circles about the charges to press against one of the major defendants – Salvatore Cuffaro, at the time, president of the Sicilian Region – provides us with insight into the legal categories invoked. As the trial proceeded, the arguments presented as proof shed light on all facets of the notion of intentionality. The sociological variety of the accused was evidence of the entanglement of legality and illegality in politics, business, finance and public administration. To what point were these men aware that their behavior abetted a criminal organization? The “Aiello trial” came out of an investigation launched in 1999 by Gaetano Paci, a prosecutor from the Anti-Mafia Division in Palermo.14 Microphones hidden in the living room of Giuseppe Guttadauro, a doctor and Mafia boss (who had previously been convicted of “participation in a Mafia-type organization”), exposed a series of extortions, homicides and acts of malfeasance linking the Mafia to business and politics. However Ice Operation, the name of this investigation, came to a premature halt. Alerted by the president of the region, Dr. Guttadauro suspended all visits to, and conversations in, his living room. In a parallel investigation starting in 2002, disclosures by a “collaborator with justice”, Antonino Giuffré, led to identifying Michele Aiello, likewise a doctor (who owned several clinics) but also a businessman in the construction industry, as being close to the Cosa Nostra’s head, Bernardo Provenzano, and several other bosses whom the police were looking for. Informed by Cuffaro of the investigation into his activities, Aiello managed to fend off police attempts at eavesdropping thanks to two technicians (Giuseppe Ciuro and Giorgio Riolo) working for the Anti-Mafia Division of Investigation. On November 5, 2003, Aiello, Ciuro and Riolo were arrested. Aiello was charged with the crime of participating in the Mafia organization Cosa Nostra, and the two others were indicted on external complicity. The president of Sicily had not yet been called in for questioning because prosecutors in Palermo had not agreed on the indictment. Michele Prestipino and Maurizio De Lucia advocated an accusation for favoreggiamento aggravato: the “help to elude police investigations” (article 378 of the Penal Code) with, as aggravating circumstances, the fact that this help went to a Mafia organization (Article 416 bis). During several interviews, Maurizio De Lucia explained to me the pertinence of this charge and the risks of using external

70  Deborah Puccio-Den complicity.15 The latter charge would, according to him, result in a fiasco (as in the “Andreotti trial”) with high costs for the system of justice, the image of the judiciary and, ultimately, the anti-Mafia campaign. On the contrary, Gaetano Paci argued that pressing a charge of external complicity against Cuffaro would be more relevant and effective. First of all, it would not be necessary to prove the willingness to help the Cosa Nostra as such since it sufficed to prove the consciousness of occasionally or intermittently providing help to the organization. For the count of favoreggiamento aggravato, however, it would be necessary to demonstrate that this help had been given with the clear intent of helping the Mafia. Moreover, favoreggiamento aggravato did not take into account the full scope of the acts committed and of their grave effects. The fact that a politician serving as president of the Sicilian Region had helped notorious Mafiosi elude police investigations reinforced and legitimated the criminal organization. Furthermore, it blocked sweeping police and judicial inquiries that could have led to the arrest of several accomplices of the Cosa Nostra, including its boss, Bernardo Provenzano. For these reasons, Paci argued in favor of the charge of external complicity. Those who backed this last position were, like Gaetano Paci, ousted from the investigation and trial, or else, like the prosecutor Antonino Di Matteo, they withdrew from the case and brought another legal action against the accused. I shall pass over this second Cuffaro trial, which ended in decisions to dismiss proceedings. The “Aiello trial” ended in January 2008 with Cuffaro’s conviction for favoreggiamento semplice: the president of the region was sentenced to five years of incarceration. The court reduced the charge from favoreggiamento aggravato because it deemed that Cuffaro had helped “some Mafiosi” elude police investigations without, nonetheless, wanting to abet the Mafia as such. In January 2010, the court of appeal recognized aggravating circumstances and increased the sentence to 8 years. In January 2011, the Court of Cassation (the highest appellate court in criminal affairs) upheld this conviction, and Cuffaro was recognized as guilty of favoreggiamento aggravato because he was “conscious of favoring the Mafia organization, Cosa Nostra”. The judgment from the Aiello trial, all 1,623 pages of it, presents the arguments used for convictions. Drawing from this source, I shall mention a few points that shed a legal and jurisprudential light on the question of intentionality in Mafia crimes.

Consciousness of the crime The court emphasized that the crime of participation in a Mafia-type organization has two aspects: an objective one implying that the individual is part of the criminal organization (because, e.g., he has been formally initiated) and a subjective one implying affectio societatis scelerum, in other words, the “individual’s consciousness . . . of being part of a criminal organization and of placing his own conduct in the organizational and operational

On intentionality in Mafia crimes  71 context of this very organization”. The court reserved the possibility of attributing this crime to individuals for whom no proof had been made of formal affiliation with the Cosa Nostra under the condition that these persons had a “conduct that constitutes an objectively functional contribution or help for the conservation and reinforcement of the organization’s structure”. Reaching beyond the criterion of membership and the intention to be part of the Mafia, the judges shifted focus onto behaviors. The ontological grounding of the Rognoni-La-Torre Act16 was repeatedly reaffirmed: members of the Cosa Nostra were “conscious of being durably associated with the implementation of a criminal project independently of, and beyond, the fact of actually perpetrating crimes planned by the organization”. This consciousness entailed the “willingness to participate in, and contribute actively to . . . the activities of an organization in which the contribution of each partner is part of the whole, of the realization of a common program that thus becomes a common cause”. The defense’s arguments – that the accused actually took part in a Mafia-type organization but without their knowledge, “without having consciousness” of its being a criminal organization – were rejected outright since “no one nowadays can seriously maintain that they do not know about the Mafia’s existence, operational modalities and unlawful goals”. For this reason, “adhering, in whatever way, to this organization, by making a considerable, significant contribution, represents a conscious form of accepting the Cosa Nostra’s rules and sharing its purposes”. Once postulated, this axiom places on magistrates the task of “clearly defining what corresponds to subordination, toleration, conscious acceptance, or else membership in relation to the Cosa Nostra’s existence and actions”. The judges’ job is to strike the right balance in evaluating this range of moral attitudes. Let us now examine the count of “external complicity” and the “diversity of roles” whereby persons either “participate” in a Mafia-related organization or else “contribute” from the outside to the organization’s prosperity. “Participants” are part of the Mafia, whereas “contributors” abet the organization, perhaps temporarily or irregularly or during a single action. This contribution becomes an offence since it sustains and reinforces a criminal organization. Nonetheless, some jurists have pointed to a contradiction: how can a behavior that does not last long contribute to a crime that is permanent (Grosso, 1994)?17 Despite the difference in the “psychological attitude” between the willingness to “contribute occasionally” or to “participate constantly” in pursuit of the goals of the societatis sceleris, consciousness and intentionality are much the same in both cases. For persons who contribute to the Mafia from the outside, however, this intentionality or willingness is “depleted even as it is realized”. Intent and act, we might say, necessarily coincide in the case of “contributors”, whereas the two are separable in the case of actual members. Recall that members of the Mafia fall under the sanction of the law even though their intentions are not necessarily realized through criminal actions. They have a “typical” behavior ontologically characterizing them

72  Deborah Puccio-Den as Mafiosi, whereas “contributors” have an “atypical” behavior characterizing a single action in their lives. What is missing in the latter case is the affectio societatis, the “willingness to be part of the organization” – not the awareness of the organization’s methods and goals. After all, “contributors” might help and support the criminal organization just as effectively as participating members. In fact, they “know and want that their contribution is for the purpose of realizing, even partially, the group’s criminal plans”. We imagine the difficulty magistrates have of proving that an individual “knows and wants.” The accomplice (“facilitator”, favoreggiatore) of the Mafia interferes in the proper course of justice to favor Mafiosi by helping them elude investigations. As is known, “the Cosa Nostra’s power has grown over time thanks to its capacity for infiltrating the state and appropriating confidential information through the disloyalty of state representatives”. It is, therefore, quite difficult to establish the difference between the behaviors corresponding to the simple or aggravated abetting of crime (favoreggiamento semplice and favoreggiamento aggravato) whenever the help is provided to a member of a tightly knit, unitary organization where the effects of a single act have repercussions on the whole. Magistrates should, therefore, be able to develop a global vision of the Mafia that links the particular to the general – in comparison with the fragmentary picture emerging from investigations.18 Furthermore, they should have the moral qualities for evaluating, case by case, whether an individual is aware of the global effects of his or her single acts. This entails a conception of human beings as subjects fully endowed with a sense of criticism. But does this conception hold for the men produced by the Mafia?19

Criminal action as a form of social action In her book – the result of a year of observations in courtrooms in Amsterdam, Utrecht and Haarlem – on the dilemmas faced by Dutch magistrates who had to evaluate the degree of responsibility of individuals for extremely violent crimes, Martha Komter has used ethnomethodological methods and a linguistic analysis to study the interactions between the various parties to penal cases in the Netherlands. Pointing to the problems of dealing with defendants who denied the acts of which they were accused (1998: 22), she has underscored defendants’ moral ambivalence, a mixture of admissions of guilt with denial. Some of them recalled being in a semiconscious state and described the precise moment when they turned from agents into spectators of their murderous acts (1998: 48). Others, under questioning, stated that they did realize the atrocity of what they had done only ex post facto (1998: 53). Might what was interpreted in a judicial context as a strategy of defense (1998: 49) – defendants’ reticence about telling the whole truth and their difficulty in describing precisely what they had done and assigning it a meaning – stem from the particular nature of criminal acts as a form of social action? This would imply that criminals adopt a position, different

On intentionality in Mafia crimes  73 from that of everyday life, toward their acts, cognitive resources and language competence. The magistrates20 who wrote the ruling in the “Aiello trial” did not conceal their discomfort with their assignment to “trace with certainty the bounds between: the condition of pure subordination; the sharing, partially and temporarily, in the goals; and the willing and conscious adherence to the rules established by the Cosa Nostra”. This task is all the harder because the sparing use of language by Mafiosi gives rise to shared forms of denial. Men of honor do not have to provide justifications for their actions nor to search for them in their conscience. A trial raises the curtain on the crime’s ob-scenum, and the murderous intent comes into the spotlight – sometimes as a revelation even to the defendants as they reconstruct events a posteriori. That is the time when murderers – at least those who do not remain confined in silence – give a meaning to actions that they undertook in what we might call an automated state of mind. Judges investigating Mafia crimes are in the same predicament as anthropologists studying rites: both inquire into acts that might be performed mechanically, without the persons involved knowing their precise meaning.21 When questioned by Caroline Humphrey and James Laidlaw (1994: 2), participants in the puja ceremony (widely observed in Jainism) replied, “The puja is meaningless”. This reply served as the starting point for a long study of rites as a form of action that “severs the link, present in everyday activity, between the ‘intentional meaning’ of the agent and the identity of the act which he or she performs” (Humphrey and Laidlaw, 1994: 2).22 Following reactions to his book, Maurice Bloch (2004: 124) examined a category of acts (including rites) that are not rooted in the intentionality of those who perform them. When, at the request of anthropologists eagerly looking for interpretations, informants try to explain ritual performances, they refer to earlier scenes or events as the grounds of their acts or else are satisfied with quoting sources of authority in justification. This “quoting” underlies “deference”, the clock springs of ritual acts. In the endless regress of the quest for meaning, the agent is in a situation of nonreflexivity “so that his intentionality, and thus his understanding, disappear or become irrelevant to the text” (Bloch, 2004: 130). His or her action is fully absorbed in a self-effacement. Such agents become “transparent”, performing gestures of which they do not grasp the meaning (even though they are sure it exists). They become the recipient of interpretations previously made by others. For this reason, interpreters – whether judges or anthropologists – are caught in the net of the desperate search for an ever-elusive meaning. “Ritual commitment” resembles involvement in the Mafia: “it results from a positive act of acquiescence in a socially stipulated order” (Humphrey and Laidlaw, 1994: 5), with the implication of suspending one’s own critical capacity in recognition of a higher authority: “a kind of abandonment of the examination of the truth of the quoted statement”, where “one can assume that what has been said is true without making the effort of understanding” (Bloch, 2004: 126). The essence of a rite (and of a Mafia-related act) depends

74  Deborah Puccio-Den precisely on this relationship of subordination: “the degree of ritualization of action corresponds to the degree to which actions are felt to be stipulated in advance and thereby separated from people’s intentions in acting” (Humphrey and Laidlaw, 1994: 12). According to these two anthropologists, this approach is not restricted to ritual since the “quality of ritual action” inheres in other types of action, such as theatrical performances, games, customs, conventional patterns of behavior or actions conducted under order: “Here, as in few other human activities, the actors both are, and are not, the authors of their acts” (Humphrey and Laidlaw, 1994: 5). This helps us better understand the perplexity of the anti-Mafia magistrates, who when interrogating Mafiosi about their murderous acts, obtained the same responses as anthropologists questioning those who perform ritual acts: “We do this because we have been ordered to act in this way” (Bloch, 2004: 125). We understand the frustration felt by the judges who were trying to identify the mastermind behind Mafia-related crimes but stumbled upon a black box. As Bloch (2004: 131) has explained: “These apparently frustrating answers combine explicitness concerning deference and awareness of imprecision about who exactly is the originating mind behind the practice”. In explanations of ritual actions, the indeterminacy of the original intention is structural: “It is not possible to identify clearly an original intentional being” since those who perform rites are “deferring to invisible and indeterminable others” (Bloch, 2004: 128). What is there to say about defendants who identify as the source of their action an entity as abstract and impersonal as the Cosa Nostra? Prosecutors had the titanic labor of reconstructing the motives for crimes. Again, Bloch (2004: 131): “Scrutiny of the source of the authority inevitably leads the inquirer into an endless regress.” How do we establish the guilt of individuals who have cleared themselves of any responsibility for their acts by pushing intentionality onto a higher entity (higher in rank and in willpower) to the point of naming God as the ultimate source of inspiration, as the Mafia boss Bernardo Provenzano did?23 This raises the question of belief. According to Putman (1975, quoted by Humphrey and Laidlaw, 1994: 9), “[P]eople are almost conscious of the fact that they are constantly relying on the understanding of others and that they normally act in terms of beliefs they do not fully understand, but which they hold valid because of their trust in the understanding of others”. The magistrates who judged Mafia crimes had to examine behaviors lodged in the coils and folds of defendants’ minds, between consciousness and unconsciousness, sincerity and dishonesty, belief and deceit. Since men of honor justified their acts by invoking a set of values and ideals in which they believed, how do we, legally and morally, evaluate malicious actions that are motivated by “good intentions”? About the beings summoned for rites of initiation, Pierre Smith (1982: 105–106, quoted by Humphrey and Laidlaw, 1994: 9) wrote, “Women and children believe, or are supposed to believe, or at least are supposed to act as if they believed.” The task of anthropologists, if not of magistrates too, is to explore this “as if” in ritual, criminal and other types of action.

On intentionality in Mafia crimes  75

Notes 1 This article has been prepared under the auspices of the Laboratoire d’Excellence Tepsis, EHESS (reference ANR-11-LABX-0067). Passages from Italian were translated by the author into French. The French version of this text was then translated into English by Noal Mellott (CNRS, Paris). 2 Much has been written about the Rognoni-La-Torre Act. On the historical context prior to its adoption and the parliamentary debates during its drafting, see Ruta (2014). Turone (2008) provides a full account of legal writings and jurisprudence on the problems resulting from this act of law. 3 A reform of penal procedures in 1989 introduced an accusatorial system in Italy. About its application and its impact on the anti-Mafia judiciary, see Falcone (1994: 137–192). 4 On Mafia-type operations and the difficulty of gathering evidence, see the comments (in Zingales, 2006) by Rocco Chinnici, an investigating magistrate. The separation between principal and agent is not restricted to Mafia crimes since it also characterizes crimes related to politics, terrorism or war. The means granted to the police and judiciary to combat the Mafia have, in fact, copied those used to fight against terrorism (Vauchez, 2004). 5 Ceremony described by Diego Gambetta (1992). In an appendix, this sociologist provides an anthology of rites of initiation, reaching back to 1884. 6 Adultery committed by a man of honor with the wife of another man of honor is punished with death, in my opinion because this action is likened to incest of the second type, a phrase whereby Françoise Héritier (1979: 219) has referred to sexual intercourse between two consanguineal persons of the same sex who share the same sexual partner. 7 As D. Davidson (2008: 106) has explained, a person is capable of doing something “intentionally” without ever having chosen or decided or had the intention to do so. 8 On “repentance” by Mafiosi as a form of “conversion”, see Puccio-Den (2014). 9 “Commission” herein refers to the group that existed, between the mid-1970s and the early 1990s, of Mafia leaders in the city of Palermo. A pentito whom I interviewed in Rome, Salvatore Cucuzza, belonged to it. During approximately the same period, there was an “interregional commission” made up of the bosses from major towns in Sicily. Although the commission changed over time, by reducing the number of its members or modifying the way it worked, the Cosa Nostra always had a hierarchical decision-making structure. 10 See Stajano (2010) for an abridged version of the indictment. 11 This seems to contradict the previously mentioned principle of separation between principal and agent. Even though the principal who gave the order to kill might, in fact, belong to the fire group, the intention would not be attributed to him personally since an operation is always conducted in the Cosa Nostra’s name. On the ritual foundations of this “communion of murders”, see Puccio-Den (2011). 12 Roberto Scarpinato, now the chief prosecutor of Palermo, was the investigating magistrate in the Andreotti trial (1993–2003). He has often used the word “ob-scene” to refer to the principal’s motive in a Mafia crime. 13 A very good example of this is Paolo Campana’s (2011) study of a Camorra network in Aberdeen. 14 Having conducted several interviews with Gaetano Paci in Palermo in 2006, I would like to thank him for the information provided and the trust bestowed on me. 15 I would like to thank Maurizio de Lucia (one of the prosecutors of the Aiello case at the Palermo Anti-Mafia Division and now a public prosecutor in the National Anti-Mafia Division in Rome) for his help, the valuable documents he made available and our enlightening discussions. It is not fully possible for

76  Deborah Puccio-Den me, nor would it be desirable, to evaluate the effectiveness of pressing any given charge. This controversy is mentioned herein because of its relation with the question of intentionality. (Lodato and Travaglio, 2005) provide a journalistic account of this controversy. 16 Some jurists have claimed that the Rognoni-La-Torre Act proves the existence of the Mafia through a “tautological vice” (Turone, 2008: 25). 17 Grosso (1994) has broached the question of the differences among the penal categories defining Mafia crimes. 18 As in the Aiello trial, two investigations can lead to two trials. A major issue in reforms of the anti-Mafia judiciary in the early 1980s was to unify investigations (Puccio, 2001). 19 The law may not, of course, make distinctions among individuals. These remarks are merely anthropological considerations regarding the different ontologies underlying the law (based as it is on individual responsibility) and the Cosa Nostra, where the individual lets his or her subjectivity blur to give priority to the “we” (Cosa Nostra) over the “I”. These ontologies enter into confrontation during the trial. 20 The ruling, signed by Vittorio Alcamo, assisted by two assessors (giudici a latere), cites a vast literature in law and jurisprudence. 21 The parallel between anti-Mafia judges and anthropologists has been developed in Puccio (2001). 22 I would like to thank Perig Pitrou for orienting me toward this approach through his comments on my presentation at the conference “Truth, Intentionality and Evidence: Anthropological Approaches to Crime and Tort” held in Rabat on January 29–30, 2015. 23 Provenzano is famous for having garnished with quotations from the Bible his letters giving orders to members of the Cosa Nostra (Puccio-Den, 2011).

References Bloch, M. 2004. “Ritual and deference” in H. Whitehouse and J. Laidlaw (eds.), Rituals and memory: Toward a comparative anthropology of religion. Lanham: AltaMira Press, 128–137. Campana, P. 2011. “Eavesdropping on the mob: The functional diversification of Mafia activities across territories.” European Journal of Criminology 8(3): 213–228. Davidson, D. 2001. Inquiries into truth and interpretation. Oxford: Oxford University Press. Davidson, D. 2008. Actions et événements (translated by Pascal Engel). Paris: Presses Universitaires de France. [Essays on actions and events, Oxford: Oxford University Press, 1980.] D’Onofrio, S. 2004. L’esprit de la parenté: Europe et horizon chrétien. Paris: Éditions de la Maison des Sciences de l’Homme. Falcone, G. 1994. Interventi e proposte (1982–1992). Milan: Sansoni. Gambetta, D. 1992. La mafia siciliana, Un’industria della protezione privata. Turin: Einaudi. Grosso, C.F. 1994. “La contiguità alla mafia tra partecipazione, concorso in associazione e irrilevanza penale” in G. Fiandaca and S. Constantino (eds.), La mafia, le mafie: Tra vecchi e nuovi paradigmi. Bari: Laterza, 192–216. Héritier, F. 1979. “Symbolique de l’inceste et de sa prohibition” in M. Izard and P. Smith (eds.), La fonction symbolique: Essais d’anthropologie. Paris: Gallimard, 209–243.

On intentionality in Mafia crimes  77 Humphrey, C. and Laidlaw, J. 1994. The archetypal actions of ritual: A theory of ritual illustrated by the Jain rite of worship. Oxford: Clarendon Press. Komter, M. 1998. Dilemmas in the courtroom: A study of trials of violent crime in the Netherlands. Mahwah: Lawrence Erlbaum Associates. Lodato, S. and Scarpinato, R. 2012. Le retour du Prince: Pouvoir et criminalité (translated by D. Puccio-Den). Lille: Éditions la Contre Allée. Lodato, S. and Travaglio, M. 2005. Intoccabili. Milan: Biblioteca Universale Rizzoli. Pitrou, P. 2012. “La divination dans la Sierra Mixe (Mexique) comme forme d’action sur le monde” in J.L. Lambert and O. Guilhem (eds.), Deviner pour agir. Paris: Éditions de l’EPHE, 87–109. Puccio, D. 2001. “L’ethnologue et le juge. L’enquête de Giovanni Falcone sur la mafia en Sicile.” Ethnologie française 31(1): 15–27. Puccio-Den, D. 2011. “ ‘Dieu vous bénisse et vous protège!’ La correspondance secrète du chef de la mafia sicilienne Bernardo Provenzano (1993–2006).” Revue de l’histoire des religions 228(2): 307–326. Puccio-Den, D. 2012. “Juger la mafia: Catégorisation juridique et économies morales en Italie (1980–2010).” Diogène 239/240: 16–36. Puccio-Den, D. 2014. “Être un ‘repenti’ de la mafia, entre droit et religion (Italie, 1973–2013)” in Y. Ben Hounet, S. Lefranc and D. Puccio-Den (eds.), Justice, religion, réconciliation. Paris: L’Harmattan, 95–108. Putman, H. 1975. “The meaning of ‘meaning’ ” in K. Gunderson (ed.), Language, mind and knowledge. Minneapolis: University of Minnesota Press, 131–139. Ruta, C. (ed.). 2014. Pio La Torre legislatore contro la mafia: Interventi e discorsi parlamentari. Rome: Edizioni di storia e studi sociali. Smith, P. 1982. “Aspects of the organisation of rites” in M. Izard and P. Smith (eds.), Between belief and transgression: Structuralist essays in religion, history and myth. Chicago: University of Chicago Press, 103–128. Stajano, C. 2010. L’atto di accusa dei giudici di Palermo. Rome: Editori riuniti. Turone, G. 2008. Il delitto di associazione mafiosa. Milan: Giuffré Editore. Vauchez, A. 2004. L’institution judiciaire remotivée: Le processus d’institutionnalisation de la “nouvelle justice” en Italie (1960–1990). Paris: LGDJ. Zingales, L. 2006. Rocco Chinnici, l’inventore del “pool” antimafia. Arezzo: Limina.

5 Crime, intentionality and blood money in Algeria and Sudan Yazid Ben Hounet

This chapter1 focuses on criminal cases encountered in Algeria and the Sudan, which were settled through conciliation (sulh in Arabic) and blood money (diya) practices. Blood money has been widely analyzed in the anthropological literature as a regulated counterpart to revenge (blood feuds and vendettas). The practice was initially thought to be a form of private justice in so-called primitive societies, that is, societies without a central authority, where the community and, in particular, the victim’s kin group dispensed justice (Lowie, 1921: 383). To understand this sort of social organization, classical anthropologists focused on rules, laws and customs as well as on punishments for offenders. “Primitive societies” were often said to distinguish among crimes, understood as acts subject to sanctions by the community, and the offenses and wrongs that required the payment of blood money. Although, since the 1950s, anthropologists such as Max Gluckman (1965), Ian Cunnison (1972), Sally Falk Moore (1986) and, more recently, Gunther Schlee (2002) and Stephane Breton (1999a, 1999b, 2002) have provided insightful comments on blood money practices in various contexts, this topic has more or less declined into obscurity and is now deemed old-fashioned. The exception, perhaps, is research on Muslim societies, where blood money (diya) is part of Islamic norms and of state criminal codes in countries that have adopted the shari’a (Ben Hounet, 2012) My fieldwork has led me to realize that intentionality is a key issue in these practices, even though the anthropologists who have done work on conciliation and blood money have seldom discussed this. In theory, and in Islamic norms, an action defined as unintentional (ghir ‘amdiyi) is to be settled through reconciliation and compensation with blood money, the presupposition being that reconciliation is easier in such cases. In the accidental homicides on which I did fieldwork, blood money was, in effect, readily accepted. This is not always the case however. The opposite can happen: a homicide considered a priori as intentional (‘amdiyi) will be settled by reconciliation and blood money, whereas one considered a priori as accidental and unintentional will not. This contradictory situation led me to examine the concept of intentionality. How and why are actions defined and interpreted as intentional or unintentional?

Crime, intentionality and blood money  79 Following Allessandro Duranti’s (1993) remarks about truth and intentionality in linguistic anthropology, we need to focus on the following three points to understand intentionality in criminal cases: first of all, the social and linguistic framework and context, in which concepts of intentionality are embedded; second, the balance of power relations that affect the case to be settled; and third, discourses about intentionality itself in relation to the local language of law, which is a part of the process for rationalization and formalization to fit these discourses into abstract legal or customary categories (Pirie, 2013).

Understanding crime by studying conciliation and blood money practices My analysis herein of the concept of crime focuses on conciliation (sulh in Arabic) and blood money (diya). Conciliation is a consensual Islamic practice approved by Muslim scholars. It is a contract (‘aqd) consisting of an offer (jab) and its acceptance (qubul) (Dupret and Ben Hounet, 2014). Diya is the compensation to be paid in a case of homicide or injury, a wrong committed (sometimes deliberately) against others. This customary practice has origins in theology and law. The Islamic tradition originally mentioned it as the compensation for the sacrifice of the Prophet Muhammad’s father (Chelhod, 1971, 1986: 141).2 Present in the Islamic tradition, specifically in the Quran, diya has been incorporated in criminal law in some of the countries (e.g., Iran, Saudi Arabia and Sudan) that have adopted the shari’a. The practice of diya is also justified by custom (‘ûrf or adat) in countries under the shari’a, as well as in other lands in the Muslim world. In theory, the practices of conciliation and blood money depend on the type of crime committed. The classical schools of Islamic jurisprudence divide crimes into the following categories: (1) offences against people, that is, homicides and injuries, which in turn, are subdivided into offences requiring retaliation (qisas) and those requiring financial compensation (diya); (2) crimes against God, which must be punished (hudûd); and (3) sinful or forbidden behaviors or actions against public order or state security (ta’zîr and siyâsa) (Peters, 2005: 7). Accordingly, blood money was a practice only in offences against people. In the Quran, diya represents a softening of “an eye for an eye” (Surat II, “The cow”, v. 178–179), a sign of God’s mercy. Diya is recommended forthright in cases of unintentional homicide of a Muslim by another Muslim. In the hadiths, compensation is extended to certain cases of intentional homicide. The classical schools agree on applying diya in cases of unintentional homicide, but only some admit the practice for intentional homicide and then under certain conditions (Anderson, 1951: 812; Ben Hounet, 2012). The unintentionality of homicide is one of the conditions for applying diya instead of retaliation (qisas). In fact, diya is usually recommended when the homicide, unintentional, results from an accident, imprudence, self-defense and so forth. Defining and determining intentionality, which

80  Yazid Ben Hounet is directly connected to the idea of premeditation, is no simple matter; it depends on several factors, such as the context, the actors involved as well as their standards and backgrounds. The power relations existing between the parties is also a factor in determining whether an offence is intentional, semi-intentional or unintentional (Drieskens, 2005; Schlee, 2002). But this falls short of a full account since it fails to tell us how the parties, in context, evaluate, interpret and explain intentionality by using their own standards. Nor is intentionality clearly defined in authoritative texts (the Quran or penal codes). Classical Islamic scholars have provided guidelines for determining intentionality (Peters, 2005: 43), but they are of limited use and not necessarily used by the persons involved in a case (judges, arbitrators, elders, notables, etc.). This brief presentation leads to the main question addressed by this chapter: how is intentionality defined in cases involving conciliation and blood money?

Crime, intentionality and blood money in the anthropological literature and in Islamic normative systems In the quest to provide a definition of “crime”, Isaac Schapera (1972: 390) has pointed out that anthropologists have not reached agreement: For instance, both Durkheim’s view that crime is essentially an act disapproved of by all members of a society, and Malinowski’s that it is a breach of one’s obligations to other persons, are too general and comprehensive to be of much use for comparative purposes. On the other hand, Radcliffe-Brown’s view that crime is an offence punished by judicial authorities, and Hoebel’s that its distinctive feature is the initiation of prosecution by public officers, are precise enough, but far too restrictive to apply universally. He (p. 390) then suggests his own pragmatic definition: “A crime is an act, or failure to act, that is considered punishable by those who are entitled to react in that way.” “Who are entitled to react” refers to the persons who punish and who authorize and approve the verdict. “Entitled” refers to a legitimate act in accordance with social norms (including self-defense and retaliation) and “considered punishable” to the fact that what constitutes a crime depends on the opinions of those in power at the time. Let us accept the relatively simple idea that there is no single definition of crime but, instead, several that are shaped by social norms and the current balance of power. In fact, very few anthropologists have studied blood money and intentionality. According to Max Gluckman (1965: 205), the question of intentionality does not arise in certain aspects of what he calls “tribal law”. As in many ancient sources of law, the motives and mental aspects of a crime or wrongdoing are, he writes, seldom brought under consideration. In studies about the Akamba or the Nuer (Diamond, 1951; Evans-Pritchard,

Crime, intentionality and blood money  81 1940), as in Hammurabi’s Code,3 intentionality is mentioned several times but without being clearly explained despite the frequently distinction made between intentional and unintentional acts. For the Nuer, studied by EvansPritchard (1940) and later by Howell (1954), intentionality is defined in relation to the type of weapon. This has also been a matter of discussion in the classical schools of Islamic jurisprudence: jurists have focused on whether the weapon is sharp or not, and Maliki and Shiite jurists have taken into account other characteristics, such as the offender’s anger or hatred (Peters, 2005: 43). These normative points of view reflect but in part actual situations. Instead of discussing them in detail, let us return to the points raised in the introduction by examining actual situations, namely, the three cases summarized in the appendix. Philosophers of the mind (Brentano, Husserl and Searle) have analyzed intentionality as a form of consciousness of the relation between an action and its result (intended or desired), which might have involved planning by the agent. Moreover, concepts underlying the philosophy of modern law (such as intentionality but also will, autonomy or liberty, all of them keys to our understanding of criminal acts) stem from our modern conception of the person, as under the Kantian or Freudian paradigms (Dupret, 2001: 447). In the Huxley Memorial Lecture, Marcel Mauss (1938: 281) tried to sketch the genesis of the notion of person: From a simple masquerade to a mask, from a character to a person, a name, an individual, from the latter to a being with a metaphysical and moral value, from a moral conscience to a sacred being, from the latter to a fundamental form of thought and action. In short, our approach to responsibility and intentionality for a criminal act presupposes a concept of the person as a fundamental form of thought and action. What Mauss recalled in 1938 still holds, but this conception is not necessarily shared by everyone everywhere. This brief reminder raises an interesting anthropological question: what about intentionality from the viewpoint of the individual’s multiple, possible forms of self-intelligence? To return to our examples, Hammurabi’s Code or the customary laws of the Nuer or Akamba call for taking intentionality into account in cases of homicide or injury, but the conceptions of personhood as they existed in these societies differ significantly from our conception here and now. As a consequence, what exactly did intentionality cover in other contexts and periods of time? Apart from some writings in linguistic anthropology (Duranti, 1993; Robbins, 2008), anthropologists have seldom dwelled on the concept of intentionality itself.

Intentionality in three criminal cases Instead of philosophizing on intentionality, I would like to discuss how it has been defined and perceived in three specific criminal cases. What cognitive

82  Yazid Ben Hounet schemes and meanings come into play when a criminal act is characterized and judged as being intentional? This analysis is based on ideas worked out by Allessandro Duranti (1993). The social and linguistic framework and contexts Intentionality is defined in relation to the social and linguistic framework of the crime and the context where judgment is passed. It is important to identify the people involved in interpreting and defining criminal cases, the framework in which they operate and the words and cognitive representations they use to attribute intentionality. Case n°1 (intentionality and mental disorder) presents a verdict pronounced by a judge of the criminal court in North Khartoum, Sudan, in the case of a homicide perpetrated by someone who having escaped from a psychiatric hospital, was accused of killing while suffering from a mental disorder. The court pronounced this verdict after a series of routine analyses and actions: collecting evidence, gathering testimonies, performing an autopsy and hearing the guilty party and members of the offender’s family (his brother) and of the victim’s. In other words, it was through a chain of transmission, interpretation and translation – the evidence, the coroner’s report and hearings – that the judge, by inductive inference and with reference to articles of the criminal code and to a jurisprudential case, pronounced his verdict. Contrary to the other parties, the judge was an outsider who displayed his wielding of judicial authority through his power to order investigations, reports and hearings. Case n°2 (murder and partial reconciliation in Algeria) concerns the murder in 2010 of a semi-nomadic shepherd from the Lamdabih clan; five members of the Awlad Shahmi clan (the suspected murderer and four alleged accomplices) were implicated. A similar situation dating from 2006 came under discussion. In 2006 as in 2010, both the clans of the victim and of the suspects belonged to the ‘Amûr tribal confederation (located in Mount Ksour), which is still partly nomadic. The ‘Amûr have formalized diya since the early 1980s, when many of these nomads settled and new forms of tribal cohesion emerged. All tribal fractions, including the inhabitants of the qsûr (traditional village) of Sfissifa and the families of Awlâd Ziad (a small foreign lineage recently settled in the area), contributed to the payment of blood money.4 Each tribal fraction had two mashul (mediators) in charge of collecting its share of payments (approximately 10.000 DZD per clan). Chosen on the basis of their position in their tribal fraction, their ability to reconcile people and their diplomacy, the mashul are in charge of collecting funds for compensation and are directly involved in the conciliation procedure. In 2006 as in 2010, the mashul established the semi-intentionality of the crimes. Since the mashul have no power of constraint over the families concerned, the reconciliation procedure hinges on their personal qualities and their network of relationships. The verdicts of semi-intentionality came out of a process of hearing witnesses, offenders and members of their families

Crime, intentionality and blood money  83 and of the victim’s. The argumentation was grounded on knowing the parties involved and the spatiotemporal conditions of the crime. Power relations In the first case, the “economy of power relations” mainly concerned the judicial power, primarily the power of the judge who had the initiative for setting hearings, asking for reports and making interpretations. He was the one who made the decision; he carefully determined criminal intent by referring to the attitudes of those involved: the victim’s family refused mercy and demanded retaliation (qisas), while the family (brother) of the accused did not hesitate to mention the defendant’s aggressiveness. Although the act was recognized as intentional, the judge, by legal artifice and citing a provision of the criminal code, avoided the death penalty. In the second case, power was, we might say, diffuse. None of the mashul could, by himself, make a decision, nor characterize the intentions of the perpetrators nor, above all, impose his interpretation of intentionality. The goal was to interpret the act and its intent to neither contravene the rights of the victims’ families nor neglect the higher interest of the groups involved. I might point out a parallel with what Peter Just (1986: 59) has written about truth, rights and law among the Dou Donggo of Indonesia: In Donggo, justice is preserved, in part, by letting the moral order determine the social order, by letting the evidence fit the crime, by constructing a ‘sociological truth’ that is consonant with the social relations and the indeterminate norms that define and govern them as they apply to a given case. As much can be said about intentionality, which is often associated with the concept of truth. Under certain circumstances, such as those addressed by the mashul in this affair involving semi-nomadic tribes, the grounds of truth and intentionality often turn out to be the higher moral and social imperatives of living together and preserving tribal cohesion. Discourses on intentionality: fitting normative systems (local, customary and legal) together In most cases witnessed during fieldwork, conciliation was mainly used following an accident, especially traffic accidents. In Khartoum, the police and the judge always request diya as soon as they learn about an accident. Nevertheless, as illustrated in the laborious third case about a traffic accident in June 2004, compensation does not necessarily lead to reconciliation. A complication in this case, where the injured victim died soon after arrival in the hospital, was that the party responsible for the accident did not own the car. The car’s owner, who was the defendant’s employer, was also held liable for paying diya to the victim’s family. His store was placed under

84  Yazid Ben Hounet sequester, then three cars in the stead of the store, then two. In March 2012, two cars were still under sequester, and the case was not about to be settled because the victim’s family had not yet come to appear before the court. In the meantime, the defendant (the driver) had died after an accident. The car’s owner was still negotiating with the victim’s family, who lived in the Al Jazira area. In the region of Ain Sefra in Algeria, the mashul are systematically involved in cases of accidents. As in the Sudan, the circumstances – even a very serious accident caused by drunk driving or speeding – do not seem to alter the verdict that the act is unintentional. In other words, the defendant’s irresponsible conduct is never interpreted as motivated by criminal intent. Let us examine the arguments used concerning the question of intentionality in the first case, a homicide committed by a mentally disturbed man: The accused used a knife on display [in the market] in order to stab the victim. The result was a deep injury in the thorax with intense bleeding. . . . According to the testimony of prosecution witnesses, they saw a wound in the thorax and bleeding due to injury. The coroner’s report confirms these facts. The court concludes in this case that the accused was aware that his act would cause death because of the use of a knife at the level of the heart (sensitive part of the human body) and its location in the thorax. The decision was not based on the defendant’s personality or his probable motives. Nor did it take into account the fact that he used a weapon grabbed on the scene of the crime. Considerations about the nature and location of the blow on the victim’s body did, however, orient the magistrate’s verdict, premised on the “logical” assumption that the location of the blow was evidence that the accused was aware of the gravity and consequences of his action. The judge’s decision about intentionality was based on the coroner’s report. The issue of the mental instability of the accused was brought up but left out of account owing to two facts: after his treatment, he no longer heard voices, and his family did not take sides with him: we move on to discuss the issue of mental instability, and ask whether the accused was under the influence of a mental or nervous disorder such that he was unable to restrain his acts. Prosecution witnesses claimed that the accused was, at the time, psychologically unstable, his clothes were torn and dirty. This was confirmed by a psychiatrist who said that the accused was interned in a psychiatric hospital where he had received treatment before escaping and committing the crime and that he had been transferred from another hospital on the recommendation of another psychiatrist (Dr. A). His family complained that he was violent and mentally unstable. He was also an alcoholic. He had been interned owing to this behavior: at the start, he murmured while at the

Crime, intentionality and blood money  85 hospital, which meant he was hearing voices. After treatment, the murmuring disappeared. There is also evidence that the accused had fits of violence without reason. This was confirmed by his brother before the court, who said that he and his sister had been victims of violence by the accused before he was interned. The defendant is held responsible, and the court rejects the hypothesis of mental disorder, referring to article 2/131 of the Criminal Code, which defines premeditation. He is recognized as guilty under the Criminal Code of 1991. To assess criminal intent, the judge relied heavily on the coroner’s report and on a similar legal case (Government of Sudan vs. Aissa, A.M.) while more or less overlooking the diagnosis of a mental disorder. The arguments and verdict were, to a large degree, grounded on ordinary cognitive schemes. When a new and somewhat unusual element, such as the issue of mental disorder, arose, it was brought under consideration but not actually taken into account in the process leading up to the decision about criminal intent. In a case, which occurred in the United Kingdom, of a young Zimbabwean woman who attacked her mother with a knife, Joost Fontain (2014) has pointed out how hard it is for courts to take the unknown under consideration, specifically the state of possession and witchcraft. In the two Algerian affairs mentioned in the second case in the appendix, several questions arise about the involvement of the mashul. Most of these negotiators told me that they did not take on cases of homicide with premeditation (qatl ‘amdiyi). These two affairs would normally be described as deliberate homicides, but the spatiotemporal conditions of the killings allow for another interpretation of intentionality. Using David Delaney’s concept of nomosphere (2004: 851), Bertram Turner (2010) has shown the impact of spatiotemporal conditions in a case of drunkenness and dispute at night near a village market in Souss (Morocco). I would like to comment on the apparent contradiction in the attitude of the mashul by discussing these conditions in the two Algerian affairs. In talks with them, the mashul all told me that the homicide took place “in the Fortassa area” (mjit Fortassa) in the springtime (rbi’). None told me the exact location and date, as a judge would have done. These spatiotemporal elements allow for a simple interpretation of the degree of intentionality. As the phrase “in the Fortassa area” indicates, the homicides occurred far from the main town (Ain Sefra), in a place reserved for herding activities, near the Moroccan border (thus also a place crossed by smugglers). The word rbi’ affirms that the homicides occurred in the springtime, when nomadic shepherds were looking for pastures for their sheep – a potentially contentious period. In other words, the fact that the homicides took place in such a place and time implied that they were very likely semi-intentional. Had they taken place in town or during another time of the year, they would probably have been deemed intentional, and the mashul would not have become involved.

86  Yazid Ben Hounet

Conclusion In the cases presented, whether from Sudan or Algeria, defining intentionality was linked both to existing power relations and, above all, to the routine cognitive schemes available to the persons “entitled to react” in Schapera’s (1972) words. Defining criminal intent is a process that involves taking under consideration similar criminal cases or judicial procedures that make sense to the judge and negotiators (mashul). Legal reasoning, spatiotemporal conditions, cultural values and sociopolitical relations are interlinked and affect how intentionality will be defined. This does not imply that the situation is static since intentionality might be reevaluated (Sahlins, 1983). Events that occurred at specific times and places influence the perception of intentionality here and now. In Sudan, forensic medicine, which has come to be increasingly used, has led to redefining intentionality. In Algeria, the state justice system allows certain persons involved in the conciliation procedure to have a say. For example, the victim’s father (in the second case) is waiting for the trial before a magistrate, who will determine the degree of intentionality, before he decides whether or not to accept reconciliation with the families of accused. Let us return to the question of personhood as a fundamental form for thought and action. It is noteworthy that the evaluation of intentionality in the cases discussed relied heavily on the ties of solidarity mustered by the accused and victims. In the first case, the accused was isolated, and the victim was defended by his family. In the second case, both the accused and victims benefitted from their clans’ support. In other words, intentionality is related not to the person as such but to the latter’s belonging to a larger social group. The methods for evaluating intentionality were not based on a conception of the person as an autonomous, free being. The principal question in the first Sudanese case was not about identifying the ultimate intent or motives of the accused but, above all, about proposing an interpretation of intentionality on purely material grounds: the type of object used and the place of the blow on the body. In the Algerian affairs in the second case, the evaluation of intentionality tended to be based on the crime’s spatiotemporal aspects. In conclusion, the motives and mental elements related to a crime or tort in Sudan and in Algeria are brought under consideration, evidence of this being the usage of the distinction between unintentional (ghir ‘amdiyi) and intentional (‘amdiyi). However perceiving and evaluating intentionality do not necessarily have as grounds the conception of personhood as a fundamental form for thought and action. Instead, it is based on other ways of understanding personhood and the person’s relation to the social sphere.

Notes 1 The English version of this chapter has been established with the help of Noal Mellott (CNRS, Paris). 2 See Ben Hounet (2010) on blood money and sacrifice.

Crime, intentionality and blood money  87 3 References to blood money can be found in Greek mythology as well as in Vedic India and in Hammurabi’s Code, which dates from approximately 1750 BCE (Burke and Pigeon, 1995). 4 At the turn of the century, the compensation for unintentional homicide was set at 80,000 DZD for a child, 100,000 DZD for a woman and 120,000 DZD for a man. In 2008, it was set at 100,000 DZD, regardless of the victim’s sex or age. This (relatively low) amount is for reconciliation. In addition, the insurance company or the guilty person’s (agnatic) family has to pay the amount determined for homicide and injuries under the law. In the case of homicide with deliberation, however, this system is not applied. Only the guilty person’s direct agnatic kin (instead of the whole tribe) collects the money for reconciliation under condition that the victim’s family has accepted reconciliation (Ben Hounet, 2009, 2012).

References Anderson, J.N.D. 1951. “Homicide in Islamic law.” Bulletin of the School of Oriental and African Studies 13(4): 811–828. Ben Hounet, Y. 2009. L’Algérie des tribus: Le fait tribal dans le Haut Sud-Ouest contemporain. Paris: Éditions L’Harmattan. Ben Hounet, Y. 2010. “La diya (prix du sang): Gestion sociale de la violence et logiques sacrificielles en Algérie (Sud-Oranais).” Annales de la Fondation Fyssen 24: 196–215. Ben Hounet, Y. 2012. “ ‘Cent dromadaires et quelques arrangements’: Notes sur la diya (prix du sang) et son application actuelle au Soudan et en Algérie.” Revue des Mondes Musulmans et de la Méditerranée 131: 203–221. Breton, S. 1999a. “Death and the ideology of compensation among the Wodani, Western Highlands of Irian Jaya.” Social Anthropology 7(3): 297–326. Breton, S. 1999b. “Social body and icon of the person: A symbolic analysis of shell money among the Wodani, Western Highlands of Irian Jaya.” American Ethnologist 26(4): 1–25. Breton, S. 2002. “Tuer, manger, payer: L’alliance monétaire des Wodani de Papouasie occidentale.” L’Homme 162: 197–232. Burke, M.E. and Pigeon, R.L. (eds.). 1995. Law, authority and society: Reading in ancient and medieval social thought. Conshohocken, PA: Combined Books. Chelhod, J. 1971. Le droit dans la société bédouine, recherches ethnologiques sur le ‘orf ou droit coutumier des Bédouins. Paris: Marcel Rivière et Compagnie. Chelhod, J. 1986. Les structures du sacré chez les Arabes. Paris: Maisonneuve et Larose. Cunnison, I. 1972. “Blood money, vengeance and joint responsibility: The Baggara case” in I. Cunnison and W. James (eds.), Essays in Sudan ethnography. London: C. Hurst and Company, 105–125. Delaney, D. 2004. “Tracing displacements: Or evictions in the nomosphere.” Environment and Planning D: Society and Space 22: 847–860. Diamond, A.S. 1951. The evolution of law and order. London: Watts & Co. Drieskens, B. 2005. “What happened? Stories, judgements and reconciliations.” Egypte Monde Arabe 1: 145–158. Dupret, B. 2001. “L’intention en acte.” Droit et société 48: 439–467. Dupret, B. and Ben Hounet, Y. 2014. “Arbitration (hukm, tahkîm, sulh)” in K. Fleet, G. Krämer, D. Matringe, J. Nawas and E. Rowson (eds.), Encyclopaedia of Islam, 3rd ed. Leiden: Brill, 37–41. Duranti, A. 1993. “Truth and intentionality: An ethnographic critique.” Cultural Anthropology 8(2): 214–245.

88  Yazid Ben Hounet Evans-Pritchard, E.E. 1940. The Nuer. Oxford: Clarendon Press. Fontain, J. 2014. “ ‘She appeared to be in some kind of trance’: Anthropology and the question of unknowability in a criminal trial.” Hau, Journal of Ethnographic Theory 4(1): 75–103. Gluckman, M. 1965. The ideas in Barotse jurisprudence. Manchester: Manchester University Press. Howell, P. 1954. A manual of Nuer law. Oxford: Oxford University Press. Just, P. 1986. “Let the evidence fit the crime: Evidence, law and ‘sociological truth’ among the Dou Donggo.” American Ethnologist 13(1): 43–61. Lowie, R.H. 1921. Primitive society. London: Routledge & Kegan Paul. Mauss, M. 1938. “Une catégorie de l’esprit humain: La notion de personne, celle de ‘moi’.” Journal of the Royal Anthropological Institute 68: 263–281. Moore, S.F. 1986. Social facts and fabrications: ‘Customary law’ on Kilimanjaro, 1880–1980. Cambridge: Cambridge University Press. Peters, R. 2005. Crime and punishment in Islamic law: Theory and practice from the sixteenth to the twenty-first century. Cambridge: Cambridge University Press. Pirie, F. 2013. The anthropology of law. Oxford: Oxford University Press. Robbins, J. 2008. “On not knowing other minds: Confession, intention, and linguistic exchange in a Papua-New Guinea community.” Anthropological Quarterly 81(2): 421–429. Sahlins, M. 1983. Des îles dans l’histoire. Paris: Gallimard, Le Seuil. Schapera, I. 1972. “Some anthropological concepts of ‘crime’: The Hobhouse memorial lecture.” British Journal of Sociology 23(4): 381–394. Schlee, G. 2002. “Régularités dans le chaos: Traits récurrents dans l’organisation politico-religieuse et militaire des Somali.” L’Homme 161: 17–50. Turner, B. 2010. “Religious subtleties in disputing: Spatiotemporal inscriptions of faith in the nomosphere in rural Morocco”, paper presented at the conference Religion in Disputes, Max Planck Institut, Halle, 27–29 October.

Appendix: Summary of the cases

Case no. 1: Intentionality and mental disorder (Sudan) Court decision in North Khartoum ( July 1, 2007) In the name of God, Most Gracious, Most Merciful. The decision comes down dated 01/07/2007. In the Arabic market of Khartoum (in the center), south of the Great Mosque, the accused Haitam O. was walking in an alley in the aforementioned center after having escaped from a psychiatric hospital (Kubar). He met the deceased Abderrahmane E. Seeing in him and other passersby monsters who wanted to devour him, he took an Omani knife, displayed for sale, stabbed him in the back and then walked away. The victim was sent to the hospital where he died. An autopsy was ordered after the event. The accused was in a wretched psychological state and was treated to be able to answer for his act. He was questioned about his acts under Section 130 of the criminal code. In his testimony, he claimed he was not conscious and could not be held responsible. In the ensuing discussion, the court referred to Article 129 of the criminal code, which is as follows: “homicide is to kill a person alive with or without premeditation. And murder [deliberate homicide] is to kill with the intention to kill”. As stipulated under Article 130 of the criminal code: “murder is: 1) to take a human’s life; 2) premeditation in the act of taking this life; 3) the relation between the act and ensuing death.” The court discussed the following points: did the accused Haitam O. stab the victim Abderrahmane E.? The answer is yes. Prosecution witnesses testified that they saw the victim stabbed in the back at the Arab market in the presence of the police; he was taken to the hospital, where an autopsy was ordered. The autopsy reported a wound in the thorax 9 centimeters deep and at 1 centimeter to the left of the heart. There was also a wound in the diaphragm. The left ventricle of the heart was pierced. The causes of death were a wound to the heart and bleeding due to injury. The document signed by coroner Dr. Akil Ennour S. E., dated January 7, 2005. The second element was this: did the accused intend to kill the deceased? Intention is defined under Section 03 of the criminal code and on the basis

90  Yazid Ben Hounet of the case Government of Sudan vs. Aissa A. M. (Vol. No. 72 p. 74). The accused used a knife on display (in the market) to stab the victim. The result was a deep injury in the thorax with intense bleeding. According to the testimony of prosecution witnesses, they saw a wound in the thorax and bleeding due to injury. The coroner’s report confirmed these facts. The court concluded in this case that the accused was aware that his act would cause death because of the use of a knife at the level of the heart (a sensitive part of the human body) and its location in the thorax. The third element was this: was there a relation between the act and the victim’s death? The answer is yes. Prosecution witnesses claimed that the victim had fallen following the knife wound and died as a result, the same day after the blow delivered by the accused to the victim with a sharp object (exhibit no. 2). There is no evidence that other factors were involved in the victim’s death. After proving that the accused committed an act punishable under Article 130/2 of the criminal code, that he did not act in self-defense and that he was not provoked by the victim, we move on to discuss the issue of mental instability and ask whether the accused was under the influence of a mental or nervous disorder such that he was unable to restrain his acts. Prosecution witnesses claimed that the accused was, at the time, psychologically unstable; his clothes were torn and dirty. This was confirmed by a psychiatrist who said that the accused was interned in a psychiatric hospital where he had received treatment before escaping and committing the crime and that he had been transferred from another hospital on the recommendation of another psychiatrist (Dr. A.). His family complained that he was violent and mentally unstable. He was also an alcoholic. He had been interned owing to this behavior: at the start, he murmured while at the hospital, which meant he was hearing voices. After treatment, the murmuring disappeared. There is also evidence that the accused had fits of violence without reason. This was confirmed by his brother before the court, who said that he and his sister had been victims of violence by the accused before he was interned. The defendant was held responsible, and the court rejected the hypothesis of mental disorder, referring to Article 2/131 of the criminal code, which defines premeditation. He was recognized as guilty under the criminal code of 1991, and the qisas was changed into a prison sentence. .

Case no. 2: Murder and partial reconciliation (Algeria) This case is about the murder in March 2010 of a semi-nomadic shepherd from the Lamdabih clan with the implication of five members of the Awlad Shahmi clan (the murderer and four presumed accomplices). Both clans belong to the ‘Amûr tribal confederation. Community leaders in the region had thrice attempted, but in vain, to reconcile the parties by proposing diya. The victim’s father refused to consider reconciliation between the two clans and to accept diya until the court heard the case. He wanted the court to shed light on the roles played by the four accomplices to define the degree of

Crime, intentionality and blood money  91 complicity and premeditation and thus the possibility for reconciliation, not with the guilty but with their clans. Since the trial had not yet started, the conflict was not settled. To prevent attacks, the tents of the guilty person’s clan, which were pitched near the camp of the victim’s clan, had been moved more than 100 kilometers away. This case is somewhat similar to an earlier one of two homicides committed in 2006, which had ended in reconciliation and the acceptance of diya. In 2006, two members of the Awlâd ‘Abdallah fraction (the Awlâd Bûbkar tribe belonging to the ‘Amûr confederation) killed two members of the Lamdabih fraction (of the same tribe). These were deliberate homicides following a quarrel. Although the guilty were put in jail, the murders caused commotion among the Lamdabih. The parents of the guilty and members of the Awlâd ‘Abdallah managed to launch a diya procedure to calm tensions and avert vendettas against the murderers and their kin. Several shuyukh (notables) and kbar (elders) belonging to the ‘Amûr confederacy were solicited to meet members of the Awlâd ‘Abdallah and settle the dispute caused by the two homicides. After much effort and pressure from the shuyukh and kbar, the victim’s families accepted compensation. The amount was 400,000 DZD (200,000 for each of the murdered). The money was collected by the Awlâd ‘Abdallah, specifically by the guilty persons’ agnatic kin. The latter visited, along with the shuyukh and kbar, the victim’s family. They brought several sheep for the sacrifice. The meal was organized by the victims’ family, and compensation was paid after the meal. The diya procedure was closed. The affair was judged under penal and civil law months later. Since the homicides were deliberate, the victim’s family did not ask for the sentences to be reduced. The two guilty persons (of the homicides in 2006) were sentenced to 20 years imprisonment and the payment of moral damages. They are now in jail.

Case no. 3: Reconciliation impossible (Sudan) On June 28, 2004, at 4 a.m., A. B. from Tutti Island ran over F. H., who was lying on the ground (sleeping outside). He took the victim to the hospital, where the latter died at 8:30 a.m. A. B. had his car papers, but the car was not insured. The same day, the traffic police filed a complaint against A. B., the driver, and M. S., the car’s owner, for diya (compensation). The prosecutor asked for an autopsy. The teaching hospital in Khartoum performed it. The deceased, F. H., 38 years old, had a huge blood clot in the pelvis and a torn bladder. He died from a fractured pelvis and heavy bleeding. The autopsy was performed, but nobody came for the body. The driver was put in jail. On June 29, 2006, following the trial, the former judge at the start of the case (not K. K.) decided to place the car owner’s land in Omdurman under sequester to secure compensation (diya). The victim’s family still did not present itself to the court. The judge issued a sequestration order on the land to secure compensation and to release the defendant under guardianship.

92  Yazid Ben Hounet The victim’s family (which lived in Jazira, far from Khartoum) had to be interrogated but still had not appeared before the court. In 2010, another magistrate, K. K. – former judge at the penal court of North Khartoum and now at the Khartoum penal court (mahkama jinaniyyat) of the traffic administration (shurtat al murûr) – received the case. Between 2006 and 2010, the principal accused party, the driver A. B., had died. M. S., the car’s owner, hired a new barrister to settle the issue of the sequestration of the land he owned in Omdurman. Between July 13 and 19, 2010, three of M. S.’s cars were assessed at the request of the K. K. to put the cars under sequester in the stead of the land, as requested by the defendant M. S. and his barrister. The assessment was 36,000 SDG (approximately €6,000). The cars were sequestered, and the sequestration order on the land was lifted. On December 4, 2011, the sequestration of one of the cars was lifted at the barrister’s request. The magistrate considered that the amount expected from placing two cars under sequester would be sufficient. On December 6, the barrister asked that only one car be placed under sequester since its price (estimated at 25,000 SDG, about €4,200) would suffice for compensation. When my fieldwork ended in March 2012, the judge was willing to accept the request of M. S.’s barrister since no one from the victim’s family had appeared before the court. He was still asking the defendant to conciliate with the victim’s family and to bring a representative from the family to the court but without results.

6 “To lose oneself while acting” Crime and forgiveness in the Mixe highlands of Oaxaca, Mexico Perig Pitrou Translation by Daniela Ginsburg In an article on the ritualization of political-legal activity among the Mixe of Oaxaca (Mexico), I showed that certain poultry sacrifices addressed to an entity called “The One Who Makes Live”1 are used to ask this entity to intervene as a judge, a mediator, or even as a victim, depending on the occasion (see Pitrou, 2013, 2016). Whereas classical works of anthropology showed the specificity of non-Western conflict resolution procedures (Nader, 1990; Collier, 1973) in Mesoamerica, process-based approaches emphasize the overlapping of various judicial authorities. Focusing on the strategies used by actors (Teresa Sierra, 1995; Martínez, 2006) would enrich such studies. From this point of view, we must not only take into account a multiplicity of human institutions (state, family, and village) but also the role of nonhuman entities in maintaining order, in particular when we wish to understand the dangers police officers face. Within this expanded approach to social facts – which, following Bruno Latour (2002) and Isabelle Stengers (2007), I call “cosmopolitical” – I propose a discussion of how “crime” is understood in the Mixe region, where I carried out ethnographic fieldwork for a period of two years between 2005 and 2009. My fieldwork has focused in particular on a municipality in the Sierra Norte region of Oaxaca. This peasant village of nine thousand Mixe inhabitants has been in a phase of accelerated modernization since the 1970s, when it was connected to the state capital of Oaxaca by a national road. The village’s sociopolitical organization conforms to the law of “Habits and Customs” (usos y costumbres) in the state of Oaxaca’s electoral code, which authorizes indigenous communities to choose their representatives according to traditional procedures. The residents of the village thus assemble to choose representatives to perform voluntary service to the community for one year according to the rotary, scalar principal specific to the “cargo system” common in Mesoamerica. Each man elected begins by performing the lowest functions in the hierarchy (e.g., as a topil, policeman), and after a few years of service, interspersed with periods of rest, those who are considered the best go on to become judges (síndicos), treasurers, or mayors. After they have completed their annual service and before they enter a new, higher position in the hierarchy, a transfer of power ceremony is held in the

94  Perig Pitrou village square, during which outgoing representatives are replaced by their successors (Pitrou, 2015). These ceremonies are associated with sacrificial rituals performed to solicit the aid of entities of nature, especially “The One Who Makes Live.” Led by an expert, participants make two ceremonial deposits accompanied by poultry sacrifices: one is made within a domestic space, the other on the mountaintop. Afterward, in these same spaces, two ritual meals are shared, closing the ceremonial cycle. In (some) political and legal contexts, the mayor, the judge, or police officers make ceremonial deposits in the town hall or the prison to ask “The One Who Makes Live” to protect them against aggression or to “send them ideas” so that they may find solutions to conflicts among residents. Over the course of the year, other similar procedures pursue complementary goals. At midyear, village representatives try to calm angry prisoners who want to avenge themselves, and at the end of the year, the mayor asks for forgiveness for any wrongdoing he or his team may have committed during their service. By studying the ritual discourses pronounced on these occasions, I hope to clarify the native categories used to think about “actions done while losing oneself” (tunktïkëëy’ïn), that is, “offenses” or “attacks.” In particular, by examining requests for forgiveness, I hope to access the dynamic that organizes conflict resolution procedures when they involve nonhuman agents. I am especially interested in the different ways in which actions and intentions may be separated from one another (or connected to each other).

“To lose oneself while acting”: an extensive category of wrongdoing In the Mixe language, which belongs to the Mixe-Zoque group and is spoken by approximately 130,000 people, causing harm to others is expressed with the verb tuntïkëëy’ïn, “to hurt, offend, attack, or aggress,” also found in substantive form ja tuntïkëëy’ïn. The verb is composed of tünïn, “to do, to be active, or to work,” and tïkëëy’ïn, “to lose oneself”; its literal meaning is “to act while losing oneself.” The verb is often found with its doublet käjpxtïkëëy’ïn, “to lose while speaking oneself,” that is, “to insult” (käjpx means “to speak”). In an environment where residents of villages and hamlets sometimes travel long distances by foot along paths, being lost has a negative connotation, as we can see in a substantive such as jottïkëëy’ïn, “to have the heart lost (= anxiety)” or in the expression denoting the disappearance of someone, “he died, he lost himself” (tëëj y’ëëky tëëj tyïkëy). At the beginning of their service, village representatives, who are thought of as guides for the villagers, ask “The One Who Makes Live” to play the same role for them, so that they do not make bad decisions or commit any wrongs; literally they ask “not to lose themselves in water [crossing rivers], not to lose themselves on the path” (kiti nëë’tïkëy kiti ntuu’tïkëy). The verb tuntïkëëy’ïn is not only applied to relations among humans; it is also used for interactions that humans may have with nonhumans, such as

“To lose oneself while acting”  95 plants, animals, or entities of nature. There is a clear isomorphism between these two kinds of relations. Like many groups, the Mixe never take the life of an animal without apprehension, and the same holds true in agriculture: when clearing and tilling the earth, the Mixe believe they cause suffering to the trees they cut and burn and to the earth they open. At harvest time, it is thought that the plants are hurt and that the ears of corn suffer from having their grains removed. Such representations, which are common in Mexico, create a tension that appears in several instances in Mixe culture: even actions considered normal and necessary can be perceived as tuntïkëë’yïn, “actions done while losing oneself,” which cause living beings to suffer. The use of this term, which also designates acts of aggression by one person toward another, emphasizes the ontological continuity between these kinds of actions. Suffering does not only result from antagonistic relations of force, for the speeches addressed to “The One Who Makes Live” in some ritual contexts prove that he is not affected like a victim of direct material actions but rather suffers indirectly from harm done to other beings. There are several indications that a “transitivity of suffering” causes this entity to suffer the pains felt by animals, trees, the earth, and corn plants. By this dynamic, “The One Who Makes Live” suffers not from a physical collision between two bodies but rather from witnessing the transgression of a rule governing relations between beings. Unlike physical damage, which can sometimes be necessary, second-degree suffering – linked to the transgression of rules – is not: though humans cannot avoid doing some harm, it is incumbent on them not to be excessive or at least to perform rites of compensation. Thus, I attended a rite organized to ask forgiveness for cutting a large quantity of firewood in preparation for a party. The logic here is similar to the one that applies in hunting: taking a large amount of wood requires that particular precautions be taken, not to prevent the trees from suffering – which is inevitable – but so that the authority in charge will not judge the action to be unjustified or excessive. On that day, we set out at dawn with machetes and axes in hand to a forest several hours’ walk from the village. Before getting to work, the oldest attendees dig a hole about fifty centimeters deep in front of a tree. They make a ritual deposit (for more details, see Pitrou, 2016) and behead a chicken over the hole, spreading blood and alcohol around it. Other participants approach and pour out a bit of alcohol then fill up the hole and cover it with a stone. The prayer made on this occasion presents the reason why the family must cut more wood than usual and seeks to obtain forgiveness for this form of aggression. Participants attempt to justify their actions: though harm is done, it is not their intention to hurt the trees. Strictly speaking, it is not the damage done that hurts “The One Who Makes Live” but rather a lack of measures to correct a disorder. The obligation to perform compensation shows how the dynamic of collision is converted into a dynamic of conflict. When “The One Who Makes Live” suffers from an action that causes harm to another being, the harm is mediated by a rule and by a third

96  Perig Pitrou party who is responsible for enforcing it. Beyond antagonism between bodies, certain transgressions enter into a system of relations in which “The One Who Makes Live” or, in another register, judges and police, are charged with enforcing the rules. Seen in this way, the field of conflict is so large that almost all suffering experienced by humans can be interpreted as punishment for some past aggression against a human or a being of nature. A wound, an illness, or an accident can thus always be explained via two temporal points of view. At the moment when they occur, they are linked to the agent who physically causes them, but they can also always be tied back to previous actions and justify an intention to punish. Symmetrically, future punishment can always be expected when one harms another. Depending on which temporal point of view is considered, the responsibility lies either with oneself or with the other. For example, a traditional doctor explains to a sick man that his headaches are caused by the jealousy (Sp. envidia) of a neighbor who has been casting “evil looks.” In this situation, the victim can both attribute his suffering to the intention of his neighbor and can also go back further in the causal chain and see that he himself, through his words or deeds, did something to provoke this violence in return. Etiological reasoning here rests on a subtle distribution of fault among the actors involved. In the Mixe system, “The One Who Makes Live” has a special status: he is an agent who causes harm but is never held responsible for any conflict. In other words, the continuity between agents and victims goes along with a division in the distribution of responsibilities between humans and nonhumans. Ultimately, “The One Who Makes Live” is not judged negatively, making his a unique kind of agency as if, to paraphrase Aristotle, the Mixe believe that “nature never punishes in vain.”

The participation of nonhuman agents in conflict resolution Other than in agricultural activities, it is obviously in the domain of politics and justice that the risk of “losing oneself while acting” is most frequent. For rulers, the risks are double: independent of their own potential mistakes, they must deal with reprehensible behavior by their fellow citizens. The multiplication of situations of wrongdoing within the community explains the formulation of certain statements made before the sacrifice performed at the beginning of rulers’ service. First, leaders express the wish that no one – themselves, the members of their team, villagers – be drunk, become angry, or insult others. Moreover, as their role requires them to “cut with the head” – that is, make decisions that will pacify situations – they expect “The One Who Makes Live” to support them during deliberations. Just as residents ask their representatives to help them resolve their disputes, these representatives themselves turn to “The One Who Makes Live” so that he will render them a similar service. He is reputed to be more clairvoyant and less subject to error and, consequently, most apt to indicate the right

“To lose oneself while acting”  97 path to take: hence, rulers expect him to send them ideas or thoughts. For example, the mayor declares the following in reference to petitioners’ visits to his office:

ja kïmuuny[jëën] ja kïmuunytyëjk yä’ät yïktatëkkït yïktawä’äkït yä’ät wejpts kajpts ëëts yä’ät nayïtë’n määpäät nmï’ayuujkpäätp ëëts yä’ät nayïtë’n meet ja uu’nk ja unä’äjktï yä’ät ok yä’ät ja nmïku’uktëjktï wïnë’n ëëts x’amenït x’ajä’ätït yääj jïts ëëts nkäjpxwïnpett jïts ëëts nkäjpx’asto’ot jïts ëëts xmo’ot ja wïnmää’ny yä’ät ja yïkjujyky’äjtpï

in the communal [home] in the communal house (= the village hall) we will enter into it we will walk into it may we awaken, may we untangle this [our service] in the same way (= may we learn to do our service) as far as we can (= may we find the solutions to problems as often as possible); we encounter the words among ourselves (= the solutions) in the same way with them the young, the sons (= the assistants) and them, our brothers all those [who to] us they will come, they will arrive here and we will return words to them (= we will answer their requests) and we will respond words to them and [to] us he will give us thought this one “The One Who Makes Live”

During my fieldwork, I had the opportunity to accompany a team of policemen, a group of forty-eight men – twelve lieutenants (Spanish: mayores de vara; Mixe: mayut) with their thirty-six police officers (Spanish: topiles, Mixe: task) – who had been named as peacekeepers for the year. After the staff passing ceremony on November 1, four teams, each made up of three lieutenants and nine police officers, take turns serving one week a month. During these periods, each lieutenant, who is considered the father (teety) of his three officers, feeds them three meals a day in his home. The age of mayores ranges between thirty and forty years, whereas that of the topiles is closer to twenty years. Even if the lieutenants did like to make fun of me by calling me first (i.e., the oldest) topil, I was closer in age to the leaders, the lieutenants. Unlike the staff transfer ritual led by the mayor, which was rather somber in tone, the tenor of my time with the lieutenants was light and agreeable. Of course, during the long hours spent in the offices next to the prison, doing nothing, I did sometimes feel the desperation of barracks life: the pornographic films the topiles watched on a laptop and the packs of beer given out by the lieutenants did little to combat the boredom.

98  Perig Pitrou But as soon as we were on the move, following someone to be arrested or working to prepare a ritual sequence, the ambiance became animated. The camaraderie built among these young men shows the pleasure they take in being part of a unified group respected by the rest of the populace. This mixture of pride and joviality seemed to prevent the group from ever becoming too violent either toward its own members or toward villagers. It is also possible, however, that it was the personality of Bernardo, the head lieutenant during my stay, that contributed to creating such a mentality among the team. Like his fellow citizens, when Bernardo would pronounce a speech, his face, voice, and manner would take on a dignity and gravity that he was otherwise lacking. The rest of the time, a big smile under a thick mustache invited his interlocutors to get into playful, lighthearted conversations with him. I learned to detect the subtle balance that allowed him to have a good time, drink alcohol, and not overexert himself: he successfully delegated work to the topiles without his relative laziness being too visible. His subordinates respected him, yet the atmosphere of the group under his charge was very warm and friendly. Other representatives of law and order carry out their responsibilities with more anxiety; I once saw a judge go home completely overwhelmed by the discovery of tensions existing within his community and tormented by the decisions he had to make. Consulting the notebook where the reasons for arrests are listed showed that the most serious offenses, such as rape and murder, remain rare. Villagers are locked up for not having respected the boundaries of a neighbor’s field or for not wanting to perform their communal obligations; the vast majority of arrests involve people who are drunk and whose violent behavior requires time in the drunk tank. Most of the time, police officers walk the village nonchalantly, wooden nightsticks in hand, or sit somewhat idly in front of the prison door, watching the passersby. Arrest is inseparable from a form of “correction” (tiy’ïn), that is, a “judgment” that seeks to make prisoners aware that they have acted improperly. In the simplest cases, lieutenants deliberate for a few minutes in the prison office before settling on a fine and/or term of imprisonment; for more serious crimes, the judge and even mayor may be called upon. Officially, the latter two are both representatives of the state legal system, to whom they must hand over prisoners when sentences are for longer than three days; in practice, friendly arrangements make it possible to settle conflicts within the community without having to change location. Thus, the legal system does not function as a monolith, and to use William Sax’s expression (2006: 478), its hierarchical levels involve a “distributed agency” whereby the participation of each level contributes to the overall functioning of the system. Whereas some men are involved in relations of force with those arrested, others perform deliberative activity. This specialization of tasks takes the form of a chain of command that corresponds to a distribution of responsibilities:

“To lose oneself while acting”  99



Types of Agency

Mayor (Alcalde)

- Intellectual process (deliberate, judge)

Judge (Síndico)

- Intellectual process (deliberate, judge)

Police Lieutenant (Mayor)

- Limited intellectual process (deliberate, judge) - Material action (arrest, detain)

Police Officer (Topil de vara)

- Material action (arrest, detain)

(Hierarchy of Responsibility)



Position

(Hierarchy of Control)

Learning to use force against aggression Police officers risk being hurt or even killed by those who wish to take revenge for having been imprisoned. But even without such extreme threats, the risk of angering someone with whom relations of force have been established explains why no officer begins his service with a light heart at the possibility of situations of tsep, “conflict/war.” In a speech made as officers take their posts, the first lieutenant, addressing his team, sums up this state of mind by reminding the men of statements made by the mayor and the priest prior to the transferal of the staffs of power: säyam ja majää’tyëjk ja tkäjpxnaxytï uk ja teety nayïtë’n yä’ät kutunk’aty ka’ap ëy yja yïktsëky pero tsojkïp yë’ kutunk’aty yä’ätpï ja’ ku tsepjotp ayoo’njotp yä’ät kutunk’äjtïn y’ity

as the mayor said he spoke of this (= he gave a speech about police service) and the father (= the priest) in the same way (= the priest also gave a speech) [about] this service [they said] this one is not good, we do not like it (= we don’t want to do this service) pero (= but) we need this service [police and legal] he whom we put into difficulty/conflict we put in danger this service exists

These words are spoken at the moment when the new “house” – that is, the prison office where delinquents are judged – is established. A section of this speech explains how their service works; the judge is also present to give a welcome speech to the new team and answer their questions. After this, the first lieutenant takes the floor to inform the young policemen of the

100  Perig Pitrou dangers they must face. As these dangers are inevitable, the objective is less to avoid them than to establish a framework within which collective action for maintaining order will be deployed. The goal, in fact, is to teach police how to be stronger than troublemakers but without entering into conflict with them, which is done through self-imposed limits on the use of force. As during the tree-cutting ritual, what is at stake here is the possibility of establishing a clear separation between actions that can harm and bad intentions. The first lieutenant begins the speech by specifying that the actions police officers perform bring them into tense situations. Of course, some police actions take place calmly, and the person arrested recognizes the crime without rebelling (“there are people this way with no more, they drop their words = they accept arrest, they don’t argue” [jatsï jää’y jatë’nï ayuujk tpïktä’äky]). But sometimes, police must use physical force, and this puts them at risk of causing resentment: jää’y pën ka’ap ja maa’kxtujkïn tmëëtï ka’ap ja jää’kytujkïn tmëëtï jamtsïn ja’ xtenïmää’yïn xjemnïmää’yïn xjemtuu’nïnt xtetuu’nïnt uk ja mëjkwïnmää’ny tyïktunkpäätt tmupïtë’ëkt ja machet ja tujn ja kipy ja tsääj njäjtïntïp nkupäjtïntïp jïnet

[there are] people (= villagers) who do not have “the cut with pardon” (= do not know how to pardon) do not have “the cut with sensation” (= cannot recognize their fault) there [in the village] in this way those people they think against us they think bad things against us (= they have bad intentions) they will act badly with us they will act against us or with strong (= bad) thoughts that they will use against us they will raise against us the machete, the rifle the stick, the stone this can happen to us, this can rise to us (= there is a risk this will happen to us) this will happen

Aggression can occur through “strong thoughts” (ja mëjk wïnmää’ny) as well as physical actions. Thus, thinking is not only an intellectual process used for finding solutions, but it is also a material phenomenon that can act on the world – malevolently, in the present case. The main danger to police officers lies in the desire for revenge: beyond the immediate threat of conflict at the time of arrest, there is also the threat that a conflict will develop over time. While police officers set out to resolve conflicts between villagers, they risk entering into conflict with those same villagers. What I call “derivative conflicts” occur when prisoners never come to recognize their fault or forgive their arrest and detention. In Mixe, the expression jää’kytujkïn maa’kxtujkïn is used to refer to these two actions of recognition and forgiveness, and the word contains two nouns composed on the basis of the verb tujkïn (“to cut, slice”). The word for “the

“To lose oneself while acting”  101 recognition of faults” (jää’kytujkïn) thus implies a cutting action made in the flow of sensations (ja jää’wïn = the sensation). “Cutting with forgiveness” (maa’kxtujkïn) consists in the ability to cease being angry. Thus, the action of cutting is not only associated with protecting (“to cut with the hands and the arms”); it also refers to intellectual processes, as Jacques Galinier (1997) has shown to be the case in the Otomi language. Independent of its role in decision-making (kutujkïn, “to cut with the head”), the action of cutting is part of awareness and forgiving, both of which are necessary to keep conflicts from escalating. In this context, the real problem is not so much the violence that prisoners inflict on others as their inability to act on themselves. Confronted with this danger, police officers must learn to react in the opposite manner by themselves using “strong ideas.” It is important that their involvement in situations of force occurs without anger or any desire for vengeance because unlike those they imprison, it is incumbent on police officers to learn to perform “cutting with forgiveness”: nyïkmïkäjpxïntït sänet nyïknïmää’yïntït pïrï (= pero) nayïtë’n ja maak’xtujkïn npïktääjkïntït

they [the prisoners] will speak to us as they will speak (= with aggression) but in the same way the cutting with pardon we will deposit it (= we will forgive them, even if they insult us)

The agency exercised by police officers here is thus particular in that their actions toward prisoners must be accompanied by an action on themselves, creating distance from their emotional reactions. Whereas the use of force establishes a relationship with another, forgiveness on the contrary seeks to produce a non-relation and to break the cycle of negative reciprocity that otherwise might be set off. As Bohannan (1965) has shown, the functioning of political-legal institutions requires a process of reinstitutionalization: these institutions themselves are subject to oversight, which distinguishes them from customary rules, which are applied more immediately. Among the Mixe, the proper exercise of oversight is encouraged by beings called upon in ritual sequences at the beginning and in the middle of the year.

The festival of the key: a ritual sequence in the manner of a legal trial No matter how well police officers may have learned to disengage from conflict, villagers can be so driven by the desire for revenge that conflicts persist. Representatives of order are helpless against this: every new arrest risks provoking more anger. To help resolve a structurally irresolvable conflict, “The One Who Makes Live” is called upon during the “Festival of the Key” (Fiesta de la Llave), which lieutenants organize in honor of the key to the prison a few months after the beginning of their service. This “festival,” which I attended between May 8 and 13, 2007, is in fact a ritual sequence comprised of the

102  Perig Pitrou same stages that make up any domestic ritual sequences (Pitrou, 2016), for example, ceremonial deposits and a meal on the mountain and, later, in a domestic space – here, the first lieutenant’s house. Like all ritual sequences, this one seeks to obtain the help of “The One Who Makes Live,” who is here referred to by the doublet “Great King, Great Lord” (konk rey konk wïntsën). The existence of actual, ongoing conflicts changes the role this entity plays in the ceremony in comparison with the one at the beginning of the year: here, he is said to act as a judge in a ritual that resembles a trial in which police officers proclaim their innocence and maintain that prisoners are responsible. During the speeches pronounced in front of the sacrificial stone and before the meal, the first lieutenant asks “The One Who Makes Live” to intervene as a judge, and by presenting a few extracts from these speeches, we can retrace the argument of what we may interpret as a sort of legal plea that serves both to defend police officers and to accuse the real culprits. The key, which plays a central role here, functions as a captor: the blood spilled on it is intended to direct the benefits of the sacrificial operation toward the prison and police activities in general. The police consider this tool to give them extra strength: as the first lieutenant says, “It makes us strong” (nmëjk’ajytypy). In addition to the imprisonment the key metonymically evokes, it is also symbolically linked to the “opening” (awä’äts’äjtïn) often asked of “The One Who Makes Live.” This word, which literally means “the opener,” is thus a metaphor for both the police officers’ power and the protection against misfortune that they hope to obtain. That is why this instrument is at the heart of the rite to such a degree that the lieutenant speaks in its name: “dear key, we deposit the word (= the prayer) in your name, we petition in your name” (n’awääjts’u’nk mkukäjpxtä’äky mkunuu’kxtä’äky). Here, we see the desire to mediate the conflict between lieutenants and prisoners via this object which, in the order of the discourse, acts as an agent in keeping the peace: by praying “for the key,” by treating it as an agent that “makes strong” and participates in depriving others of freedom, police seek to attenuate their own responsibility for antagonism with certain residents. This objective is achieved by distributing the wrongs among police and prisoners – not by describing particular cases but by recalling in general how conflicts emerge, as the first lieutenant does during the meal on the mountain:

ëëts ja pëkyjää’y jam tsumy ämpëjkp jotmä’ätp ja nmïku’uktëjktï jatë’n yä’ätpï kutunk’aty yïkmïtseppätp yïkmï’akkïppätp

we “the pecadores (sinners)” (= those who do wrong) there [in the prison] we tie them they receive heat (= become angry) they decompose from within (= feel offended) they our brothers (= the prisoners) in this way with this service we encounter conflict we encounter anger

“To lose oneself while acting”  103 Faced with these transgressions, the problem is how to transform prisoners’ psycho-corporeal state without angering them further. To overcome this systemic blockage, the lieutenants solicit “The One Who Makes Live” so that he will intervene as a third party at two levels: he must both distribute responsibilities and pacify the guilty. Thus, the lieutenants act before him as prosecutors pleading their case; in the festival I observed, a ritual expert guided them to give more weight to the proceedings. She spoke in their name, directly addressing “The One Who Makes Live,” who is here referred to as a “father,” and explained that they did not have time to make a ceremonial deposit earlier. After this introduction, the first lieutenant continues the speech in the first-person plural (ëëts), presenting the concern motivating the ritual. By following the ritual expert’s speech, the lieutenant places himself under her authority, reproducing the subordination between himself and the men on the police team. In this context, he develops arguments to demonstrate police officers’ innocence, emphasizing that they are only executors: they do not deny “tying up, locking up” prisoners but are only material agents “in the service” (ku-tunk) of the village; they obey (patunïn) – their superiors in particular. Thus, maintaining order requires a scission of agency: the decision to arrest a person and the actual arrest are carried out by different people. During the meal on the mountain, the first lieutenant reiterates that no bad intentions lie behind the arrests:

ja jää’y atëm ntsu’myïntï n’akäjyïntï ku yïknï’ëënïtï ku yïknïpëjktsowïtï kiti atemïp ja jää’y ka’ëy ntëë’nyïntïp nmäjtsyïntïp kiti ka’ëyïp ja pujxtëkjëtypy npïktääjkyïntïp nixiijykyïntï ntaxiijykyïntï ka’yjatë’nï nkutunk’aty atëm npatuu’nyïntïp

the people we we tie them up, we imprison them when they are accused when accusations are brought against them it is not in being bad (= we do not have bad intentions) [when] we catch them we imprison them it is not in being bad that we put them in prison we [do not] laugh at them amongst ourselves we [do not] laugh at them with [these arrests] it is not in this way [that] (= we do not mock when we arrest) our service we we continue to do it (= we do it by following orders)

Using the same logic, the first lieutenant specifies that his team should not be the target of those who “grumble, make claims”:

104  Perig Pitrou ëy ëëts ja jää’y ntsumy ëy ëëts ja jää’y n’akäjy ane’emy ëëts ntuny nayjap ëëts ja njïp’ämït pën ëëts x’ana’amp jäts ëëts npatunypy yïktamï’ämpëjkp ëëts yïkta’oojp ëëts yïktamïkäjpxp ëëts nkupijykypy ëëts ja’ jatë’n pï jatë’nxï ja kutunk’aty

although we tie up people although we imprison people we do it under advisement (= we obey orders) there [in his office] the one who is at our head (= our leader, the judge) it is he who advises us (= advises and orders) and we continue to do [what he says] (= we carry out what he says) they become angry at us for this they rebuke us for this they make claims against us for this we accept this [these claims] because this is how service is

In sum, there are three processes by which the lieutenant affirms that his team members are not to be held responsible: he declares that the ritual is “for” the key; he speaks under the cover of the ritual expert’s authority; and he reminds everyone of the hierarchical organization that frames police intervention. But to be complete, the plea must do more than proclaim innocence: it must point to the responsible parties. Here, the goal is to have a higher authority judge that which has already been decided by human justice. Once the troublemakers have been found guilty and imprisoned, the intention is to prove that they are also responsible for any derivative conflicts that might arise. The argumentative strategy used here is symmetric to the one used for exculpation and establishes that the prisoners are full agents when they “lose themselves in acting” and that thus full responsibility can be imputed to them. This effect is produced notably through the use of the reflexive pronoun kë’m: kitiipï ja jää’y pën ëëts ntsumypy pën ëëts ntiipy tyimytya’ämpëktï tyimytyajotmä’ättï kë’m tyuntïkëëytyï kë’m kyajpxtïkëëytyï ku yïktsumtï ku yïktiytyï

that the people those who we tie up those who we judge [may they not] receive heat (= not become angry) not feel decomposed from within from this (= not feel offended) they themselves lose themselves in acting (= aggress) they themselves lose themselves in speaking (= insult) when we tie them up, when we judge

The mechanism at work here is similar to the one Duranti described among the Samoans: Much of the political and juridical process of conflict management in a Samoan fono [a traditional conflict resolution procedure] involves

“To lose oneself while acting”  105 the definition of certain “facts” and the assignment of certain semantic roles to key participants. Morpho-syntactic elements of Samoan grammar hence become powerful tools in the political arena, where social actors compete by either constituting or resisting definitions of agency. (Duranti, 1990: 646) Among the Samoans, as among the Mixe, the power of the word is part of the panoply of tools available to those who govern when they exercise their authority. In the “Festival of the Key,” this power is directed toward “The One Who Makes Live”: the description of conflicts both establishes him as a judge and aims to guide his decisions. His role does not end there, however, for he is called upon not only to judge but also to mediate.

After the trial: mediation and forgiveness In Mediation: A Comparative Approach, Carole Greenhouse (1985) explains how mediation emerges from a shared desire to go beyond discord, whereas judgment or adjudication may be imposed without any agreement between the parties having been reached (see also Gulliver, 1979). “The One Who Makes Live” is asked not only to distribute responsibility but also to act on the emotional states of those looking for quarrels (“may they not be angry, may they not feel offended”). Few details are given regarding the material action by which “The One Who Makes Live” calms the feelings of the offended, but it is logical to think that this action is supposed to do for them what they cannot do for themselves, that is, achieve “cutting with pardon.” Certain speeches contain requests for forgiveness that beyond legal assignation of responsibility, seek to pacify relations. We might think that to the extent that the first lieutenant declares his team’s innocence, they have nothing to be forgiven for, but the necessity of acting on prisoners – that is, forcibly imprisoning them – leads officers to ask that they forgive them. In his fascinating work Mea Culpa: A Sociology of Apology and Reconciliation, Nicholas Tavuchis (1991) presents the multiple configurations within which forgiveness emerges in human societies. Alongside dyadic situations where an aggressor directly addresses the injured, there are many variations in which pardon is formulated either for oneself or for another, either in the absence or in the presence of the injured party, and so on. In the present case, the request for forgiveness is expressed without the prisoners being present, as when the first lieutenant makes a libation and says: tmee’kyxy yä’ät ja nmïku’uktëjktï paty atëm ja tun’ääw paty atëm ja kojpk’ääw yääj npääjytyïntï yääj n’ijyxyïntï

may they pardon us they our brothers [the prisoners] for this we the mouth of the hill for this we the mouth of the mountain here we encounter it, here we see it (= we perform a rite to ask) (Continued)

106  Perig Pitrou nyäxt jïts nayïtë’n kyëxt nmïku’uk ja wyenn ja y’ääw myo’ontït pye’etstït jïts kitiipï yä’ät tsep akkï tyïktäntï ëy yä’ät yïktsumtï ëy yä’ät yïk’akäjtï

may they pass and in the same way may they end of my brothers, those their faces, those their mouths (= may the criticisms and recriminations pass) [may] they become calm, be extinguished (= cease) and may this difficulty/this conflict, [this] anger may they be left by them (= may they cease to be angry with us) although they are tied up although they are imprisoned (= even if they are in prison)

The “ritual condensation” (Houseman and Severi, 1998) opens onto an extra level within social relationships because a nonhuman entity renders physically absent humans present. “The One Who Makes Live” has multiple roles in this process: as a hierarchical superior, he relegitimizes the actions of police officers and gives them a lever they can use to extract themselves from the conflicts they may be dragged into – the function of the rite is to help them perfect their control over themselves. Symmetrically, as a mediator, “The One Who Makes Live” is said to exert control over residents who are not able to act on themselves. Ultimately, his action reconciles two modes of relations that humans are not able to establish simultaneously: naming guilty parties without offending them and judging while also going beyond the legal sphere. The pacifying function of the ritual sequence gives the final meal a role beyond simply staging the acceptance of a food offering. The presence of the mayor, president, and judge among the guests makes the process of ritual identification more complex: not only are they the “representatives” (kutanaapy, “those who stand before”) of the nonhumans who have been visited, but in addition they create continuity with the resolution procedure begun on the mountain (on this representative process, see Pitrou, 2016). Thanks to them, the three groups of actors involved (lieutenants, nonhumans, and prisoners) are represented at the meal. Before the tepache (ritual beverage) is drunk, the first lieutenant is careful to once again refuse all responsibility for conflicts with prisoners, something made easier by the fact that he is addressing his hierarchical superiors, who explicitly rule in favor of the police. The president’s use of the reflexive pronoun kë’m thus ratifies the imputation of responsibility for conflict to the prisoners: ja pëkyjää’y xtsumtï xtiytyï pues jantsy mayjëëjp atëm njää’y’äjytyïntï

the pecadoras (= “sinners,” those who commit faults) you tie them up, you judge them pues [in] truth [there are] many points [among] us human beings (= differences exist among us)

“To lose oneself while acting”  107 pën kya’ëyjää’wïtïp pën ta’akkïtïp pën tajotmä’ätïp ku kë’m tyuntïkëëytyï ku kë’m kyäjpxtïkëëytyï

[there are those] who do not feel well [when we lock them up] who become angry because of this who decompose from within (= feel offended) [although] they themselves lose themselves in acting (= act badly) [although] they themselves lose themselves in speaking (= insult)

Moreover, the president designates the judge and mayor as leaders whom the lieutenants merely obey: ka’ts meets ja mkë’m wïnmää’ny xyïktuny jaaj ja’ jïp’ämït jaaj ja’ pën meets nwïntsën’ajytypy pën meets m’ana’mïp pën meets m’akajpxïp

it is not your thought for yourself that makes you active (= you are not the authors of this decision) (. . .) there [at the end of the table] those your leaders [the judge and the mayor] there those [are those] who are our lords by whom you are advised by whom you are advised

The distinction between the physical activity performed by police officers and activity implying an intention reappears here. While validating a split form of agency, these words also add an extra layer to the process of ritual resolution. When the lieutenants speak, they proclaim their innocence; when a hierarchical superior expresses a “word in return,” he confirms the veracity of the police officers’ account, just as one would expect “The One Who Makes Live” would do if he could speak. The play of identifications becomes even more complex. The fact that the representatives speak (kukäjpx) and act (kutunk) in the name of the village also makes it easier to appease prisoners – at least on the ritual stage. By statute, leaders have the right to speak in the villagers’ name without it being necessary to stage a face-to-face between those involved. There is some resonance between the requests for pardon addressed to the absent and the direct requests that the lieutenant addresses to village representatives: ja jää’yts tmee’kyxytyï ku ëëts ntiy ku ëëts nka’tiy säyam ja majää’tyëjk

the people may they pardon us when we go straight when we do not go straight (= when we err) like the elders (= the village representatives) (Continued)

108  Perig Pitrou wyä’äntï ka’ap ja kutunk’aty pën tnï’ijxpëkkï ka’yïktajaty ok meets maakxtï nayïtë’n meets ëëts nteety’ajytypy ntääk’äjytypy pïnï jam ëëts ntiy jam ëëts nka’tiy pïktä’äktï ja maakxtujkïn pïktä’äktïts ja ana’mïn pïktä’äktïts ja kutujkïn

said (not) service no one can study it (= it is not to be learned, it is difficult to learn to do it well) this cannot be done and you pardon in the same way you [the representatives] who are our fathers, are our mothers when there [in the prison] we go straight there we do not go straight (= when we err) deposit (= grant) the “cutting with pardon” (= forgive us) deposit (= give) advice deposit (= give) the decision (= give us your orders)

The connection between direct and indirect requests is established through the parallelism “to go straight/to not go straight,” which the lieutenant uses to indicate that he and his team have made a mistake or acted improperly. Unlike statements in which police attempt to exonerate themselves, here they recognize that they too can be held in reproach: a sign that they take a further step toward resolution. Gradually, the gaps seem to narrow, and through the double intervention of “The One Who Makes Live” and those who govern, the initial antagonism becomes less head-on. The ritual is thus a sophisticated device for maintaining peaceful coexistence by enlisting human and nonhuman mediators. The value given to forgiveness and to creating peace – rather than imposing punishment – matches practices found among the Zapotecs and Tzotzil (Collier, 1973; Nader, 1990). For instance, Collier wrote about the Zinacanteco that “The Presidente and the elders who conduct hearings are not impartial mediators. They do not have to be fair. This is a crucial point, and a key to understanding the Zinacanteco legal system. . . . The mediator’s job is to produce a compromise, either by being impartial or by taking one side or even by shifting back and forth” (1973: 99). Here, pacification takes place using a ritual artifice by which police officers transmit a request for pardon from absent prisoners via the village leaders.

Conflict resolution as interplay between roles The examples discussed here shed light on the motivations surrounding the ritualization of political-legal activity. The fact that Mixe rulers repeatedly ask nonhuman agents “to send ideas” proves that the latter participate in deliberative activity. Thus, “The One Who Makes Live” is reputed to be an authority on truth who knows what took place during a conflict. This is why,

“To lose oneself while acting”  109 for example, in a sacrifice performed at the end of the year (Pitrou, 2015), the mayor’s deputy mentions a conflict between himself and the treasurer – who reproached him for making unnecessary expenditures – and said “it was true what he said, what he declared” (ojts jantsy nyimy ojts jantsy wyä’äny). In that case, the addressee of the rite was placed in a position from which he had privileged access to what is “true, real” (jantsy). For this reason, ritualization here does not follow the dynamic of an ordeal, where to use Turner’s terms, ritual action is a means by which a group rife with conflict “offers itself to the arbitrament of the invisible powers” (1977: 200–201). Instead, the objective is to plead guilty, to recognize one’s faults rather than to discover a truth that would otherwise remain inaccessible. Nonhuman agency is solicited to intervene because it allows rulers to find solutions to overcome the conflicts that emerge within the community. In his book Bien Juger: Essai sur le ritual judiciaire (1997; “Judging Well: On Legal Rituals”), Antoine Garapon explains the rituality connected to justice by the need to create a specific spatial-temporal framework within which the symbolism of objects and the division of roles encourages dispassionate deliberation. In my opinion, and to complete his argument, I think that in certain cases, rituality aims less to create distance from social life as to expand its limits – it also participates in constructing a position of exteriority from which a human group may cast a reflexive view on the system of relations within which individuals are ordinarily engaged. As is the case in other rites observed in North America and Oceania (Zion, 1998; Braithwaite, 2000), the goal is not to discover who is guilty but rather to mobilize a nonhuman third party to play several roles (judge, mediator, victim, etc.) and to dissolve dynamics of conflict. Just as in the Ho’oponopno rite in Hawaii, which involves cutting a rope (Hosmanek, 2005), among the Mixe there is a correlation between the physical act of cutting and mental and interactional processes: “cutting with forgiveness.” In such circumstances we must avoid thinking that when resolution is achieved, it is a definitive result. Rather than considering that the social order is thus reestablished or reaffirmed – as functionalism used to claim – it is more accurate to follow Strathern when she declares: “‘Disputes’ can not be simply set against their ‘resolution.’ It is not just that disputes are never finished. Rather I suggest that the more disputes are ‘settled’ then the more they will erupt” (1985, 122–123, emphasis in original). Thus, conflicts are not anomalous events but rather moments within a wider connection among beings. In Papua New Guinea, the possibility of converting a dynamic of conflict into a process of wealth circulation is a way of attenuating the destructive effects of violence. Among the Mixe, the distribution of agency within a hierarchical legal system plays a similar role, in particular by attenuating the negative effects caused by the use of force and in keeping with the principle of reinstitutionalization previously outlined. Within this dynamic, how the link between wrongdoing and intention is established – or, conversely, how the two are disconnected – is of crucial importance. Whereas certain actions associated with agriculture or the administration of justice

110  Perig Pitrou may appear to be “actions done while losing oneself,” they never fully are. Unlike the actions of those who are imprisoned or those who make beings of nature suffer without reason, some actions that appear to have harmful consequences but which are not committed with bad intent can be justified. In such cases, the reiteration of the rite reaffirms a normative system within which certain wrongs appear to be relatively inevitable, for the order of things and their institutional function depend on them. Far from being situations that break with the norm, they should instead be thought of as moments in a wider system of relations within which humans and nonhumans strive to prevent logics of conflict from degenerating.

Note 1 “Celui qui fait vivre” in French. We have chosen this rather awkward English rendering (1) to emphasize that it is not a single phenomenon, life, that is created, as “The One Who Makes Life” would suggest and (2) to emphasize the causative relation of fabrication that exists between the natural entity and his object, which more colloquial translations such as “The One Who Brings to Life” would obscure.

References Bohannan, P. 1965. “The differing realms of the law.” American Anthropologist 67(6): 33–42. Braithwaite, J. 2000. “Survey article: Repentance rituals and restorative justice.” The Journal of Political Philosophy 8(1): 115–131. Collier, J.F. 1973. Law and social change in Zinacatan. Stanford: Stanford University Press. Duranti, A. 1990. “Politics and grammar: Agency in Samoan political discourse.” American Ethnologist 17(4): 646–666. Galinier, J. 1997. La moitié du monde: Le corps et le cosmos dans le rituel des Indiens otomi. Paris: PUF. Garapon, A. 1997. Bien juger: Essai sur le rituel judiciaire. Paris: Odile Jacob. Greenhouse, C.J. 1985. “Mediation: A comparative approach.” Man 20(1): 90–114. Gulliver, P.H. 1979. Disputes and negotiations: A cross-cultural perspective. New York: Academic Press. Hosmanek, A.J. 2005. “Cutting the cord: Ho’oponopono and Hawaiian restorative justice in the criminal law context.” Pepperdine Dispute Resolution Law Journal 5(2): 359–376. Houseman, M. and Severi, C. 1998. Naven or the other self: A relational approach to ritual action. Leiden and Boston: Brill. Latour, B. 2002. “Cosmopolitiques, quels chantiers?” Cosmopolitiques 1: 1–10. Martínez, J.C. 2006. La nueva justicia tradicional. Interlegalidad y ajustes en los campos jurídicos de Santa María Tlahuitoltepec y Santiago Ixtayutla. Mexico: CIESAS. Nader, L. 1990. Harmony ideology: Justice and control in a Zapotec mountain village. Stanford: Stanford University Press. Pitrou, P. 2013. “Justice et agentivité distribuée chez les Mixe de Oaxaca (Mexique): Approche cosmopolitique.” Ateliers d’anthropologie 39. Doi: 10.4000/ ateliers.9475.

“To lose oneself while acting”  111 Pitrou, P. 2015. “Le pouvoir entre exposition et occultation. Rituels politiques dans la Sierra Mixe de Oaxaca, Mexico.” Cahiers d’anthropologie sociale 11: 16–37. Pitrou, P. 2016. Le chemin et le champ: Parcours rituel et sacrifice chez les Mixe de Oaxaca, Mexique. Nanterre: Société d’ethnologie. Sax, W.S. 2006. “Agency” in J. Kreinath, J. Snoek and M. Strausberg (eds.), Theorizing rituals: Issues, topics, approaches, concepts. Leiden and Boston: Brill, 485–506. Sierra, M.T. 1995. “Indian rights and customary law in Mexico: A study of the Nahuas in the Sierra de Puebla.” Law & Society Review 29(2): 227–254. Stengers, I. 2007. “La proposition cosmopolitique” in J. Lolive and O. Soubeyran (eds.), L’émergence des cosmopolitiques. Paris: La Découverte, 45–68. Strathern, M. 1985. “Discovering ‘social control’.” Journal of Law and Society 12(2): 111–134. Tavuchis, N. 1991. Mea culpa: A sociology of apology and reconciliation. Stanford: Stanford University Press. Turner, V. 1977. “Sacrifice as quintessential process prophylaxis or abandonment?” History of Religions 16(3): 189–215. Zion, J.W. 1998. “The dynamics of Navajo peacemaking.” Journal of Contemporary Criminal Justice 14(1): 58–74.

7 Translating evidentiary practices and technologies of truth finding Oath taking as witness testimony in plural legal configurations in rural Morocco Bertram Turner Introduction This paper addresses technologies of truth finding and the establishment of evidence in dealing with everyday deviance at the village level in rural Morocco. There is a multitude of institutions and individuals that appear to be tied to the formal legal system and the state to varying degrees. In this paper, one particular institution – that of the people’s judge, the hakim – takes center stage. This institution was established in the 1970s to act as an interface between the formal legal system and the diversity of local normativities and was abolished in 2012. The hakim was entitled to pass judgment on behavior that was considered a nonserious infraction of that order in which local normativity and formal law converge. In this plural legal configuration, I argue, the hakim operated with specifically developed technologies of taking evidence and establishing truth that appear inherently contradictory but nevertheless reflect aspects of various normative logics, namely locally well-established customary practices, Islamic procedures, and those acknowledged by the formal judiciary. In the process, evidence and truth hence emerge as “averaged” normative categories to serve justice at the grassroots level while still complying with the requirements of the formal legal system. The point of departure for this paper is the local manner of dealing with deviance in rural Morocco, be it behavior that is considered to contravene local notions of order or acts that are formally classified in legal terms as crimes, petty crimes or torts (Amzazi, 2013). There may be different readings of behavior at the local scale depending on various normative frames of reference that may come into play, and these can involve different techniques of truth finding and concepts of “proof”. Behavior that can be qualified as punishable and therefore should be prosecuted according to criminal law might be acceptable or even preferable according to local standards of right and wrong. Thus the notions of “wrong” and “crime” are not necessarily coterminous, and it seems necessary to address the relationship between the two from a local perspective. In the following, therefore, the term “deviance” refers to behavior that is perceived by locals as wrong according to

Translating evidentiary practices  113 local parameters and in view of the specific circumstances of the case. Classifying a wrong as a “crime”, on the other hand, is a legal procedure that formal governments and judiciaries produce in a political process (Parnell, 2003; Schneider and Schneider, 2008). Moreover, a legal terminology that differentiates between crime, tort, infraction, offense, delict and so on does not correspond to local legal reasoning or understandings of deviance. In this context it is worth mentioning that the local way to deal with deviance seems to be geared more toward preventing a person from gaining an advantage from deviant behavior than toward penalizing individual misconduct. Following this rationale, locally imposed sanctions, mostly fines established by the community, connect the balancing of individual wrongdoing with its social environment and are inherently geared toward reintegration. It is in this context that I analyze the notions of intentionality, evidence and truth. The establishment of evidence as a technology of truth finding is analyzed with respect to the institution of the hakim that existed in Morocco between 1974 and 2012. The hakim, a justice of the peace or people’s judge (juge communal; qadi chabi), operated at the level of the rural district (jama’a l’qarawiyya) in Morocco and navigated between the formal judiciary and the realm of local normativity. In other words, the hakim was appointed by the state to judge what state law classifies as “petty crimes” at the local level by applying domestic law in accordance with so-called customary law, ‘urf. It should be noted here that some acts that state law classifies as “petty crime” and which therefore fall within the remit of the hakim (jurisdiction de proximité) can, according to local categories, be considered quite serious offenses. As will be shown, a procedure the hakim applied in his court to establish the truth – the taking of an oath – appears to be a hybrid of different normative logics and frames of reference. I argue that this approach allowed the hakim to draw on aspects of competing truths or realities that follow different normative and social logics to ultimately arrive at one definitive conclusion. This chapter thus contributes to the debate on truth, evidence and intent in legal anthropology. As has been frequently addressed in recent literature on the construction of evidence or evidentiary ontologies and truth making (e.g., Berti et al., 2015; on a more general note, see Duranti, 2015; Engelke, 2008; Kuipers, 2013), such forms of evidencing as “staged legal processes” perform “how law . . . and its ruling [are] mediated back into society” (Johnston, 2014: 57). Berti, Good and Tarabout, for their part, emphasize the striking commonalities between ritual and legal practices of truth making. But how are we to approach situations in which more than one normative and societal logic are to be combined? In legal anthropology, the notion of truth is connected to such competing notions of evidence. An analysis of the intertwining of components that are rooted in different normative logics provides insight into the different ways that “past facts” and the reconstruction of realities are intellectually and socially connected with procedural approaches.

114  Bertram Turner More concretely, and ensuing from the assumption that the oath is predominantly a mechanism for the establishment of judicially cognizable facts, the chapter contributes to the debate on competing concepts of oath taking and their respective connotations regarding the establishment of truth in legal environments that entail some configuration of state law, Islamic law and local normativities (Abualfaraj, 2011; Bechor, 2012). The ethnographic vignette that follows offers insights into how evidentiary ontological plurality that reflects diverse social conditionalities and legal regimes can be translated into mediated social order. Following an introductory note on local concepts of ordering and local notions of justice and the legal environment, I examine a particular local arrangement that is widely neglected in the literature: the interaction between, on the one hand, a village council as a rule-setting and fine-fixing institution and, on the other hand, a local judge who represents adjudication in compliance both with the judiciary and with the village order. I then present a case study in which the hakim or people’s judge strategically makes reference to what I call hybrid forms of taking evidence and establishing the truth. How and to what ends does the village court make use of such concepts when engaged in the construction of realities and the production of facts? I further examine the role that the assessment of intentionality, the provision of evidence and the search for truth may play in local processes of dealing with deviance. As will be shown, truth emerges not as an imposed absolute but rather as a relative qualification reflecting specific perspectives (such as kin solidarity) that are placed on an equal footing with other readings of “the facts”. The production of evidence thus reflects divergent perspectives on the same course of events and sequence of facts. More often than not the identification of a single master narrative seems unimportant, if not something that is to be avoided entirely. I argue that intentions, evidence and truth are evaluated by taking into account the extent to which they result from, appear as manifestations of or have an effect on their local environment.

Village justice and local order in rural Morocco1 Village justice and its legal environment Village justice and local order in rural Morocco are embedded in a complex web of governmental, administrative, juridical, customary, moral and religious frames of reference (Turner, 2006). The spatiotemporal and social boundaries of territoriality, communality and kinship are markers of distinction that constitute villages as spheres of specific normative orders (Turner, 2013). The state legal system in Morocco is widely seen as offering a normative umbrella for all subsidiary legal constructions in specific social fields and local contexts and providing the frame of reference toward which all other normative registers orient themselves. This normative universe is composed of different legitimizing frameworks with

Translating evidentiary practices  115 varying degrees of validity and scope, among them, pre-protectorate and ancient Sultanate state law, a French model of centralized state law, Islamic law and Islamic normativities, state-recognized and informally developed local legal regimes and, finally, the interaction with transnational legal templates (Turner, 2006). The configuration of local orders thus includes and combines components from various religious and normative regimes that, in turn, already reflect mutual interdependencies (Rosen, 2000; Turner, 2001). Local institutions and state-local interfaces Various local bodies and assemblies have a say not only in local politics but in everything that relates to the maintenance of order (Bergh, 2009; Turner, 2006, 2007). Such local ordering is backed by certain state institutions, some of which cooperate and can even be interwoven with local ones such as that of the hakim, as will be described in more detail, although they are not all authorized to act in cases of crime as it is defined by the law. This interaction derives in the first place from the mere fact that people wear several hats. In the following, I will only refer to the interaction between two institutions, namely the village council, predominantly in its capacity as a rule-setting body, and the hakim, who adjudicates with reference to various normative registers and technologies of truth finding. The council (jma’a) Village councils used to constitute the self-organized political and juridical decision-making body that took care of all village affairs in pre-protectorate times in Morocco, with more or less intensive ties to the regional and national political forces. The formerly traditional institution was reinterpreted during the time of the French Protectorate (1912–1956) as an interface between the state judiciary and the universe of an imagined tribal society, ruled on the basis of customary law as understood and interpreted by the French. Officially disempowered after independence for reasons of postcolonial state building, village councils always continued to exist. They regained importance and recognition over the decades, functioning as counterparts to state institutions in the form of all sorts of self-organized structures, such as water and electricity supply units. At an organizational level, the establishment of civil society organizations (CSOs) has been promoted in the villages since the end of the 1990s in the wake of the mobilization of the local population initiated by global governance institutions. The organizational model of CSOs was translated into the local vernacular, and the village councils are now organized as CSOs, usually in the form of an Association du Développement Local (ADL). This status grants them implicit state recognition to which they may refer under various circumstances (Bergh, 2009; Turner, 2006). The local production of normative order continues within these frameworks.

116  Bertram Turner The people’s judge (hakim) At the level of a rural district (jama’a l’qarawiyya), the hakim acts as legal intermediary, adjudicating minor offenses according to local ‘urf as well as with reference to state law (see, e.g., Rosen, 2000: 111–132). The hakim is thus a decisional authority, appointed by the government, who represents the state judiciary in rural areas, while at the same time being recognized locally as an expert in customary law with intimate knowledge of local social relations. The hakim as local judge was officially instituted by the Moroccan government in 1974. At the local scale some regarded the formal establishment of a people’s justice as the resurrection of a relic from the protectorate’s portfolio of local legal institutions. There is the widespread assumption that the institution was introduced at that time to counterbalance the perception that customary law was being excluded from the normative universe that had taken shape after independence. In other words, it had become clear that a total disregard of custom would not help the newly formed state gain recognition and legitimacy in the rural world. To become a hakim, one is selected by a state electoral commission to serve for a period of three years in a rural community. Afterward, according to the data I collected in southwest Morocco over the course of 20 years, hakims are usually reappointed to that office on a regular basis. Hakims generally have no legal training, so they have to complete a crash course in legal matters provided by the Ministry of Justice (Ministère de la Justice). Contrary to the criticisms voiced as justification for the institution’s abolition, all of the hakims that I met in the last 20 years in rural Morocco had a reputation for being incorruptible and fair. The hakim is particularly concerned with minor cases of deviance at the local scale – acts that fall within the category of “petty crime” – and tries to reach a compromise between litigants. He is obliged to prosecute wrongdoing if it is brought to his attention and to alert the responsible authorities. Nevertheless, a logic the hakim always follows is to keep local disputes under control. Everybody has the right to bring his or her concerns before the hakim. Dispute regulation before the hakim is conducted orally and is free of charge. The most frequent disputes hakims adjudicate have to do with access to resources, land and property issues. Boundary disputes regarding the small garden plots within the villages are among the most common issues brought before the hakim. In certain concrete cases, the hakim may involve other state agents and consult other experts regarding local customs. Besides those issues, breaches of public morality such as public drunkenness, brawls and insults (e.g., winking at women) are on the agenda, although the hakim cannot claim to be the sole legitimate formal institution to be concerned with such cases. Officially he is not entitled to intervene in family law matters, although I frequently found hakims involved in precisely such cases. The hakim’s tribunal is called al-makhama al-jama’a, the district court. The court hearings follow, in principle at least, the official state-mandated

Translating evidentiary practices  117 procedures according to Moroccan procedural law. Thus, in principle, a plaintiff bears the burden of proof and must, therefore, be able to call on witnesses. This is a crucial moment in local-state cooperation in the construction of solid evidence and strong indications of truth. The hakim examines witnesses in accordance with state legal procedures; however, the way he does so and his interpretation of the information received may follow a local logic. The hakim cannot impose prison sentences, but he has the right to impose official statutory fines of up to 1,000 MDH (approximately €100). Fines up to this amount belong to the local community. If a penalty were greater than this, the next higher court would have to be involved. The “state” would then get the money, and the local community would receive nothing. I often observed that the hakim would therefore divide an offense into a number of partial offenses that could then be fined separately. Indeed, the issue of fines is also the most intriguing element of the local normative order for local actors. A clear separation is usually maintained between these two universes of fining. In the act of imposing fines through the hakim, however, state fines may be transformed into local ones and the state logics of fining – punishment of an individual by financial penalty for the benefit of the Moroccan state – is blurred with local ideas about fining as a means to generate an advantage for the community while at the same time giving a convict the chance to atone for the wrongdoing and reestablish social balance. Along these lines the hakim may (informally) suggest that in place of a monetary fine, the convict could choose to invite the offended party and the village notables to a collective meal, which is a traditional fine and an act of restoring local order at once. The rules and the fines for the infringement of the local order are fixed at the village level within the framework of the village council and are considered local tradition or customary law. However, some rules are simply impossible to comply with. They are so complicated, detailed and fraught with inevitable pitfalls that literally nobody can avoid violating them. Under such circumstances, it is difficult not to conclude that the rules are designed to fine people to generate revenue for the community. The customary law at the village level to which the hakim refers is laid down in a collection of precepts called qanun that quite often exists in the form of a written document. While commonly referred to as eternally valid rules passed down by the ancestors from time immemorial, these normative bodies are in fact much more flexible and reflect local normative reasoning in dealing with the challenges the village members must cope with on a dayto-day basis. In 2012 the hakim system was abolished and has since been replaced by a judiciary of proximity involving professional judges. The reasons given for this emphasize the necessity of granting access to equal standards of justice to all Moroccans. Critics allege that the hakims are vulnerable to corruption and arbitrarily manipulate the formal legal framework (Boufous, 2011; Bulletin Officiel, 2011). Authors such as Rosen (2000) have criticized the

118  Bertram Turner role of the hakim when he acts as a judge, characterizing him as a representative of the rural elite who is in cahoots with other state agents and who is in no way unbiased. In my experience, however, the hakims can hardly be described this way. In all the cases I have witnessed, the hakims always exhibited profound local knowledge and unequivocal solidarity with the rural community. They rather acted as intermediaries between local informal institutions and the state apparatus and readily supported the locals’ preference to keep the state, especially the police, out of the villages to the extent possible. I never witnessed a hakim conferring with other officials before handing down a verdict. Another criticism often raised was the hakims’ lack of training, which according to the critics, rendered them unqualified to act as people’s judges. The premise can hardly be denied. Indeed, the majority of the men I encountered in this position had poor literacy skills. However, they managed to overcome this inconvenience with the help of others and claimed legitimacy on the basis of their intimate knowledge of ‘urf (Hart, 1996: 367). In one case a village scribe acted as a sort of clerk. I also never experienced the type of dissatisfaction with the hakims’ verdicts that Rosen (2000) has described. I quite often witnessed defendants or plaintiffs refusing to accept the compromise suggested by the hakim in cases in which the hakim deemed it necessary to mediate between parties instead of issuing a verdict. In most cases, however, the hakims demonstrated a great deal of sensitivity and knowledge of local social structures when trying to convince people to accept their decisions. They applied public pressure―the withdrawal of local civic rights, so to speak―involved religious or spiritual experts or local notables and made use of all sorts of other locally integrated coercive techniques. Although empirical observation is technically no longer possible because the institution has been abolished, in the autumn of 2014 I did manage to organize a meeting with the hakim who is the main actor in the ethnographic vignette presented in the next section to discuss this paper. Interestingly, nobody mentioned the abolishment of his position. He still had clients.

Disputed access to natural resources The ethnographic vignette presented here sheds light on hybrid practices of taking evidence that the hakim employed in his trials. The normative field in which he was operating had expanded due to the translation of transnational legal templates into the local legal vernacular, a process that has had an impact on local ways of dealing with deviance. This new challenge to local practices materialized in the form of a local environmental NGO that burst upon the scene with new standards of behavior, according to which certain actions were classified as punishable wrongs. The very existence of the NGO itself was the result of such translation processes as international environmental politics encouraged the emergence of such organizations in rural Morocco to implement certain externally derived practices (Turner, 2005). The aim was to spread knowledge about environmental problems

Translating evidentiary practices  119 and to sensitize the local population to issues of nature conservation. The background in this specific case was the establishment of a biosphere reserve for the protection of the argan forest, a unique ecosystem that has attracted global interest since the 1990s (Turner, 2014). The idea behind the establishment of a local NGO was to support the maintenance (or revival) of local standards of nature protection that are community controlled and allow local people to benefit from the sustainable use of the forest resource. Thus the local discourse that transnational interveners had stimulated was about the revitalization of traditional regulations of access and usufruct rights in the forest. Nevertheless, a tightening of conventional local environmental standards took place as transnational legal templates of nature conservation and sustainability were translated into the local vernacular. The NGO, which was composed entirely of local people, had issued a statute composed of a series of rules for environmental protection that made reference to “ancestral rights and obligations”. This statute had to conform to the state law on civil society associations and be approved by the state (Lafrouji, 2005). With the legitimation of international environmental discourse and its standing within the development scene, the NGO felt authorized to intervene in cases of “illegal” resource utilization in the argan forest. In 1999 the NGO announced a period of agdal, a closed season in the forest. This had not been done in more than 10 years because the villagers did not feel they were in a financial position to suspend exploitation of the forest resources, even temporarily. The authority to announce a period of agdal actually lies in the hands of the council, but the NGO appropriated this power because the council showed no willingness to renew agdal. At the same time the NGO announced its intention to enforce observance of the protection period and to take responsibility for fining wrongdoers. For this purpose the members of the NGO developed a new catalog of fines. It was under these circumstances that two NGO members who were to monitor and enforce observance of the closed season detected a herdsman “illegally” grazing his herd in the forest. They approached him and announced that they would fine him. The herdsman commented on this with his fists, resulting in minor injuries to the NGO members. The NGO brought the case before the hakim. In so doing, the NGO was trying to gain public recognition. The president of the NGO acted as plaintiff. The NGO formally sued the herder for payment of the fine and for damages related to personal injury. The defendant pleaded not guilty as charged, arguing that the closed season was announced by the NGO illegally and that his recourse to violence was appropriate because traditional usufruct rights are to be defended in that way. The two NGO members who were on patrol in the forest testified to having seen the goats grazing in the forest. The hakim called the fqih, the presider of the village mosque, to assist with the administration of the oaths. The witnesses testified under oath about the identity of the herder and demanded compensation in the name of the community. The hakim swore in the NGO members as if they were neutral witnesses, even

120  Bertram Turner though, as the actual victims of the attack, they could hardly be considered neutral. The members of the village council, upset about the NGO’s usurpation of the council’s right to fix fines, mobilized witnesses to testify that the herdsman was working for the community, implying that the community, which has the right to decide for itself how best to manage the resource and whether to impose agdal, cannot act against itself. In addition, declarations of solidarity in the form of subsequent oaths came from various sides, including the herdsman’s family members and village notables. It is important to note that the herder’s solidarity group, composed of his agnates, brothers and cousins (khamsa khmas), showed up as a united front. Under oath, the proponents of the herder used all sorts of buzzwords from the civil society and human rights discourses, referring to ancestral rights to access the resources, their rights to livelihood, and other arguments they believed would resonate with the human rights canon (huqquq an-nass). This type of oath – sworn to express solidarity with one’s relative – is known as tagallit and comes out of the normative logic of ‘urf. It has not officially been practiced since the times of the French Protectorate. The NGO members replied that the herder’s recourse to violence violated human rights and therefore had to be prosecuted as a crime. In his interrogation of the opposed parties, the hakim first asked the NGO people if they had clearly signaled to the herder their intention to not fight back. The herder was then asked if he could see that the NGO patrol had no intention of responding violently. No clear agreement was reached on this point. The discussion then broke down into a mixture of mutual accusations and internal contradictions of all parties involved. As the NGO members constituted both witnesses and the plaintiff, however, they had no other independent witnesses to testify to their version of events. Moreover, they could only show proof of some very minor injuries. Because they were not the accused party they did not feel the need to mobilize character witnesses to testify to their reputations. In the judgment that was ultimately handed down, this fact was brought up to show that the plaintiff did not make the necessary effort to shed light on the events, an argument based on customary law that was, however, not really relevant to the given case, as addressed in the next section. The solidarity group of the herder, in contrast, testified first that the herder’s lifelong conduct proved that he did not have a propensity for serious violence and, second, that his testimony was truthful. In his final consideration of all pertinent circumstances, the hakim gauged first about the lawfulness of the claim. He then emphasized that whatever happens, any and all fines should go into the community’s cash box and nowhere else. He was, however, critical of the fines set by the NGO, saying they would surpass the tolerable limit for minor offenses; the peasants would be unable to pay, for example, 10 MDH for every goat or sheep that was determined to have been illegally grazing in the forest. The council was charged with the task of scaling down the penalty to 100 MDH altogether for every future transgression of the new/old grazing order.

Translating evidentiary practices  121 Second he ruled that, according to ‘urf, which the NGO was trying to revitalize, agdal could not be imposed without the consent of the council. Third, he said that the witnesses from the two sides balanced each other out. Neither the NGO people nor the witnesses for the defendant had borne false witness, an apparent contradiction that will be addressed in the next section. The arguments of the herder’s proponents were deemed to be accurate and “true” (sahih). The hakim considered the herder’s recourse to violence justified or “fair”2 (munasib) and in accordance with the standards of lowlevel violence that are in line with the principle of male defensibility laid down in ‘urf. Moreover, the violent act took place outside the village in the forest, where it is considered no threat to the community. Therefore, he said, all the fancy buzzwords from the human rights and civil society discourses here ran up against local realities. The herder was acquitted. The plaintiff party was not blamed for false or voluntary misstatement. Their witness statements were accurate and issued to the best of their knowledge, but as the hakim phrased it, “their point was not strong enough”.

Technologies of truth finding combined in local context In this case, oaths of three different kinds and following three different normative logics in the production of evidence are put together as if they constituted a single coherent procedure. There is, first, reference to Moroccan formal legal procedure and “courtroom oath” (Bechor, 2012). Eyewitness accounts of facts that are given under oath carry more weight in court. There is, second, the tagallit – the oath taken as a manifestation of solidarity with a confirmation of reputation and social status of the accused and that is regarded as truth (the polysemous term haqq is also used in the Moroccan Southwest to refer to this concept). The practice of collective oath taking in its various forms – whether as an oath of allegiance or as an oath of compurgation – is in principle an integral component of quite different legal orders (see, e.g., Shack, 1979). For the Moroccan context the annual oath of allegiance to the king by representatives of the community in a public ceremony is of particular importance and keeps the collective oath in the public eye (see, e.g., Belhaj, 2009). In its compurgative shape at the grassroots level, the collective oath is generally understood as a typical component of conflict settlement arrangements that follow a logic of retaliation and thus refer to collective responsibility within kin groups (Prodi, 1992). This also applies to pre-independence rural Morocco. Of the great variety of former tagallit practices, only a few aspects are mentioned here that play a role in the hakim’s hearing. As a legal institution it is well-known as a cornerstone of Amazigh justice (see, e.g., Gellner, 1969; Hart, 2000; Hoffman, 2013; Rosen, 1989; Turner, 2001). In this case, however, it is embedded in a plural legal environment where the relevant language is Moroccan Arabic (darija) and not the local Amazigh language

122  Bertram Turner (tashlhit). Moreover, it is a practice no longer in use in customary conflict settlement but which is still mentioned quite often in the local context. Tagallit cannot be combined with other forms of oath taking and does not apply where there is already sufficient evidence. If witnesses cannot provide the necessary evidence, a plaintiff may call on the defendant to take the oath of tagallit, which automatically includes the number of members of the solidarity group that is required for the specific issue at hand. It usually takes place in the mosque or at the tomb of a religious expert locally venerated as a saint. In the case at hand, the order of the ceremony was rearranged so that all members of the herder’s solidarity group, which was even enlarged by non-kin members, swore separately and not immediately following the defendant. According to the original procedure of the collective oath, however, the solidarity group would swear as a single unit and immediately after the defendant, testifying that the defendant’s statement was truthful. The performance of tagallit as it happened in this case can also be analyzed as an impressive “moment of profound testimony . . . making available internalised evidence”, as Johnston (2014: 58) depicts performance artwork as empowerment for legal processes. Berti, Good and Tarabout’s (2015) comparison of legal and ritual judgment practices with respect to doubt and proof moves in the same direction. While the public performance of the collective oath substantiates the dissipation of doubt, it nevertheless leaves room for more than one version of the course of events. The correctness of the ritual performance of collective swearing, which has already been adapted to the given context, may convey more probative force than the literal meaning of the actual spoken content of the oath. There is, third, the religious component of Islamic testifying. Actually, this entails calling in at least two eyewitnesses without oath taking (Abualfaraj, 2011; Adam, 1948; Bechor, 2011; Hart, 2000). All participants, including the defendant (but not the plaintiff), however, had to testify under oath (qasama), and they did so as explicitly prescribed in Islamic rules. During their testimonies they repeatedly swore to be telling the truth “by God” (wallah). All the attendees that I talked to after the proceedings confirmed that they considered the whole procedure to be in complete accordance with Islamic legal prescriptions of oath taking. Without going into the specifics, one may say that in Islamic law, the role of the oath seems to be far from clearly defined (Bechor, 2012). Most observers assert that witnesses are not sworn in (Abualfaraj, 2011; Hoffman, 2013; Rosen, 1989: 32). This is a component of state law, and in domestic courts the fqih does not play any role. Officially, Moroccan state law does not insist on any reference to religion at all in the oath taking. In contrast, in case of uncertain proof, lack of evidence or unavailability of eyewitnesses, Islamic legal procedures stipulate that the defendant be sworn in and testify to his or her innocence. Should the defendant refuse to give evidence, the plaintiff may confirm on oath the truthfulness of the accusation. Here also state law comes in to an extent.3

Translating evidentiary practices  123 This detail may even provide a link between the religious and the customary normative logic because the tagallit, when refused by the defendant, may also be given against him by the plaintiff. This is the scenario the hakim referred to in his final verdict. Moreover, some people could see a possible additional link between this collective oath of confirmation of the solidarity group and the only Islamic legal version of the collective oath, the ‘Khaybar’ qasama (Peters, 2002). Apart from a Hanafi variant, this qasama is specific to the Maliki legal orientation (madhab) (Wymann-Landgraf, 2013), the one in force in Morocco. I investigated whether Islamic representatives would have seen a similarity or overlap between the Maliki qasama and the tagallit. However, only erudite local Islamic experts had knowledge of such legal sophistication. Maliki qasama, they argued, was never practiced in the region because of the existence of tagallit. One cannot rule out, however, the possibility that Islamic scholars mediating between the different spheres of legality in this part of Morocco may have adduced this specific Maliki version of collective swearing as an Islamic practice to juridically legitimize the local practice of tagallit. The picture is further complicated by the introduction of new justifying normative components, namely an international conception of human rights never considered before in local processes of truth making. Thus the hakim augments the formal legal procedures, the swearing to the possible courses of events and “facts” in the form of eyewitness accounts and hearsay, with a modified version of an outdated local component, the “consecutive” swearing to a person’s reputation out of solidarity after the statement of the defendant under oath, which in fact should only be called upon if eyewitness evidence is not conclusive. In so doing he expands the context of the case in such a way that various dimensions of the “truth” can be included: information about intent inferred from the act of solidarity and the assessment of the individuals’ reputation, information about the course of events based on eyewitness accounts and hearsay and so on. They all contribute to the final picture. This is only possible through effective and strategic use of the existing procedural repertoire with a view to compromise interrelated instances of truth. The hakim never used in court the term for the collective oath; he was careful always to refer to it only in some roundabout fashion. But it is not only this creative combination of existing procedures that makes the hakim’s approach interesting. He also disregarded the basic framework conditions mentioned earlier, be they rooted in customary law, Islamic normative thinking or the formal judiciary. Quite often it is the plaintiff who wants the accused to swear with his co-oath takers when a hearing takes place before a jury (the village council) and not before a lone judge. It is important to note that the swearers of the tagallit are often questioned as if they were eyewitnesses; for example, “Did the defendant commit the crime?” The answer would then be: “No, he did not!”, meaning, “I believe my relative, and he denies the accusation.” Here one can see conflicting notions of what is considered in legal theory the principle that no evidence

124  Bertram Turner that is irrelevant to the case should be adduced (Jackson and Doran, 2010). Moreover, there are actually three types of tagallit: first, the act of swearing solidarity; second, a form of ordeal; and third, an oath turned “upside down”, meaning an accusatory tagallit. The last two options are considered much more serious, and in the ethnographic vignette presented, the plaintiff did not go that far. Thus under such circumstances of insufficient proof or biased witnesses, the defendant may be given the opportunity to take the “oath of denial”, an option that is based on a normative logic that resonates with all three intersecting normativities – Islamic, local and domestic. Hence this may be seen as a plural legal interface, although the hakim may call on “the one presumed most likely to know what is true about the matter at hand” (Rosen, 1989: 33) to testify under oath. The hakim could have called the plaintiff to take an oath; however, as the only one of the protagonists who was not directly involved in the case and therefore could not have any specific expedient knowledge, the hakim said that he found it better “to leave his reputation unchallenged”. Whatever kind of oath may be at stake, perjury is subject to severe penalties. This is true for state law, Islamic law and customary law as well. The tagallit, for instance, is locally understood as a conditional self-cursing. In other words, it is believed that a person who perjures under tagallit curses him- or herself and will quite soon suffer serious spiritually induced sanctions such as an accident, illness or other form of misery. The concept of the oath as a self-cursing act quite often surfaces in various contexts as an explanatory scheme for all sorts of negative events. The condition for impunity valid according to Islamic normativity – that if the evidence, even if false, was given to the best of one’s knowledge and belief – does not hold for tagallit. Because the fqih was present, the venue of the court hearing was considered “valid” and equal to a mosque or religious convent in terms of evoking spiritual punishment in case of perjury. People are therefore afraid to take such an oath without careful consideration. Thus the religious aspect of the tagallit was connected to “the notion of truth that the oath was meant to establish” and not “to the substance of the law” (Kraus, 2005: 156). All this remained unaddressed in the hearing but was always in the back of the hakim’s mind, as he explained to me afterwards, saying that the decision to waive the other two tagallit options had of course weakened the position of the plaintiff and his followers. On the other hand, he said he appreciated the fact that nobody mentioned additional options to testify because he considered the case not serious enough to warrant such challenging requests. When we discussed the case, I asked the hakim how to properly understand in what way the oaths sworn before him had produced evidence. Did they, for example, disclose hard facts or a more social truth? He said it was a little bit of both: “Since the three models address different issues and therefore there is no contradiction between them, they can be combined to do justice to everybody. Thus this combination very much helps to establish the truth.”

Translating evidentiary practices  125 On the local level all the parties involved either accept this unspecified procedure or are not aware of its peculiarities, including the accused. If external actors happened to mistakenly presume that such declarations of solidarity were in fact eyewitness testimonies in accordance with the law, well, that form of confusion was one that local actors appreciated very much. Such misinterpretations occurred when the variety of Amazigh customary law was transformed into French-controlled “indigenous justice” during the protectorate (see, e.g., Gellner, 1969: 107; Hoffman, 2013). The collective oath can be adapted to the formal legal system by presenting it as the consecutive individual oath swearing of the members of a solidarity group rather than as a single collective performance, as it was in former times (see Marcy, 1949: 66–80). At the same time it could also have been associated with the Maliki legal institution of qasama, which in fact, constituted a very specific form of collective oath emphasizing the offended party’s perception of truth when the circumstantial evidence of guilt in homicide cases was strong but conclusive evidence was lacking (Peters, 2002). Such a legal tool was rarely if ever put into practice in Morocco. Thus incommensurable notions of truth are coproduced in this combination (Just, 1986). It is not the various testimonies given under oath that determine what is true; it is still in the hakim’s agency to create a hybrid truth, invoking diverse and even incompatible aspects of intent and proof in different measures. He makes extensive use of his discretionary power to select and combine means of establishing truth and determining intentionality to reach a purposeful and locally accountable conclusion. In a way he determines a sequence in what Duranti (2015) calls the “intentional continuum”. In legal terms, the oath actually produces one version of the course of events that can be translated into a legally binding verdict in favor of one or the other party; it does not lead to compromise and mediation. But through the hakim’s transformation and arrangement of proofs, he can issue a verdict that comes close to mediation. Inversely, for mediation among parties who continue to share a common social environment, the establishment of the one undoubtable – nevertheless constructed – proof does not necessarily constitute the alldecisive factor that necessarily overcomes controversial versions of courses of events. The case study vividly illustrates certain aspects of the current debate in the social sciences on truth making and the production of evidence as bricolage and a patchwork of evidence produced with the use of various technologies, formalities and technicalities of truthing (Duranti, 2015). Sets of incomplete knowledge, biased interpretations, fragmented memories and so on, all of which entail questions of probability, are validated through the combination of formalizations of truthing that follow different and incompatible social and normative logics. From that perspective, through his truth making and evidence production, the hakim creates the reality he is judging. Formalized procedures are deconstructed without losing their binding character as evidencing, with which they are only endowed by the very act of their formalization. The hakim creatively makes use of this “indeterminate

126  Bertram Turner nature of the process of proving facts,” as representatives of the “new evidence scholarship” in legal theory have put it (Jackson and Doran, 2010). The facts presented are not gauged by reference to a rule of law. Rules of evidence are translated to achieve a compromise between competing ontologies of truth. Social routine and historical experience with adapting local models of weighing the assets and liabilities in individual biographies against formal legal procedures combine with the importance of the public statement in Moroccan culture (Rosen, 1989). Thus the hakim makes selective use of the relevant and available “evidence in context” to produce both a legal solution that takes into account, to differing degrees, the various normative logics involved (with their partly incompatible evidentiary standards) and a local social situation in which “truth in context” defuses the conflict and transforms it into an episode within an ongoing process of normative translation.

Conclusion The aim of this contribution is to hint at an interface between local legal reasoning, religious normativity and the national judiciary in truth making procedures. In a nutshell, the official procedural form of oath taking, according to Moroccan law, merges with components of Islamic normativity and with the principles of the tagallit, the local oath of solidarity, taken before the hakim, whose very existence grew out of such mixing of legal elements. The hakim, as the law-enforcing agent, applies local regulations and imposes fines on people who have infringed those regulations. The central model of fact-finding techniques and truth-making technologies that are supposed to contribute to the generation of precise knowledge in the ethnography presented here is the legal institution of the oath. Local actors, however, blend components from various legal orders and endow the oath with a peculiar meaning. In the case at hand, those different concepts were translated into each other and coalesced into something that seemed to compose an inherent contradiction. The hakim invoked first a state legal procedure – the oath sworn by witnesses – that is not required with respect to Islamic regulation. This form of giving evidence reflects the truth only to the extent that the parties are convinced of the truthfulness of their respective claims. This legal tool was combined with, on the one hand, the oath sworn by the defendant, a procedure that only applies in cases of scanty or inconclusive evidence and in which components of domestic and local law converge and, on the other hand, the principles of the tagallit, the collective oath according to “customary law”. All three types of oath were empowered with religious significance. All this applies to witnesses who are not only not objective but openly exhibit their biases. According to the tagallit concept, giving evidence does not mean vouching for the truth of an event in the sense of a testimony or an eyewitness account. Instead, the tagallit may be understood as an expression of the fact that the kin unit to which a defendant belongs is convinced that their member acted appropriately; that is why all members of the solidarity group

Translating evidentiary practices  127 are willing to declare their confidence in this person. This implies that they take hearsay and public opinion about the case into consideration. In a way this illustrates to what extent the handling of evidence in legal matters is related to common sense, as Twining (2006) emphasized. Inferential reasoning in conflict settlement, both as a collective process and as the privilege of the decisional authority, appears as inextricably interlinked protocols of knowing. One additional point worth mentioning is that local actors consider the customary procedure of the tagallit to be in full accordance with Islamic normativity. Nowadays, such an oath may no longer be taken before the informal traditional or religious legal institutions concerned. The hakim, however, used to accept the oath as something that could contribute to his assessment of the accused’s intent and ultimately to the establishment of truth. Thus much depended on how the hakim framed the concrete question to be sworn on. Sometimes it was done in a way that was open to more than one interpretation. All this is done to obtain a result without involving the state. The evidence of social ties and the good reputation of the individual may be privileged over the binding declaration of observed facts. One might thus make a distinction between the evidence of facts and the evidence of an individual’s reputation. Nevertheless, translations between the respective legal regimes with which people operate are real challenges and cannot reconcile all sorts of obvious contradictions. But they can achieve another goal. One aim of the hakim’s handling of the risk of error to which the parties are exposed and the risk of evidence seems to be in this legal process to set the stage for the acceptability of his verdict (Jackson and Doran, 2010). If the institution of the hakim has been abolished because hakims did not strictly apply Moroccan formal law, then the decision was justified. However, a certain space that was left for the local interpretation of social truth and “intent in context” has been closed down. The three categories determining the facticity of a deviant act, that is, intentionality, evidence and truth, emerge as mutually co-constituting notions dependent upon their social environment. Thus the analysis may shed light on the ongoing debate over how competing evidentiary ontologies inform truth making in legal procedures.

Notes 1 The people and places referred to in this paper have been kept anonymous. Fieldwork on “technologies of truth finding: the provision of evidence” was carried out for several weeks each year between 1996 and 2005 and again in 2010, 2011 and 2014. Data from different settings and specific constellations on the Souss plain are included in the analysis. From 2001 to 2010, the fieldwork was part of the project “Sustainable Development and Exploitation of Natural Resources, Legal Pluralism, and Transnational Law in the ‘Arganeraie’ Biosphere Reserve” within the Legal Pluralism Project Group at the Max Planck Institute for Social Anthropology in Halle/Saale, Germany. Since 2010 I have continued my related work within MPI’s more recently constituted Department of Law & Anthropology. 2 See also Smith 2002 on the notion of sedq that associates the concept of truth with loyalty and other personal qualities.

128  Bertram Turner 3 For the various states of oath taking and evidence, see Code de procédure pénale, Art. 110 (1959); Code de procédure civile, Art. 76 (1974); Dahir n° 1.59.415 du 28 joumada II 1382 (26 novembre 1962) portant approbation du texte du Code pénal, Art. 368, 377.

References Abd-Allah Wymann-Landgraf, U.F. 2013. Mālik and Medina: Islamic legal reasoning in the formative period. Leiden: Brill. Abualfaraj, M. 2011. “Evidence in Islamic law: Reforming the Islamic evidence law based on the federal rules of evidence.” Journal of Islamic Law and Culture 13(2–3): 140–165. Adam, A. 1948. “Remarques sur les modalités du serment collectif dans l’Anti-Atlas occidental.” Hespéris 35(3/4): 299–310. Amzazi, M. 2013. Essay sur le système pénal marocain. Casablanca: Éditions Le Fennec. Bechor, G. 2012. God in the courtroom: The transformation of courtroom oath and perjury between Islamic and Franco-Egyptian law. Leiden: Brill. Belhaj, A. 2009. La dimension islamique dans la politique étrangère du Maroc: Déterminants, acteurs, orientations. Louvain: Presses universitaires de Louvain. Bergh, S. 2009. “Traditional village councils, modern associations, and the emergence of hybrid political orders in rural Morocco.” Peace Review: A Journal of Social Justice 21: 45–53. Berti, D., Good, A. and Tarabout, G. (eds.). 2015. Of doubt and proof: Ritual and legal practices of judgement. Farnham: Ashgate. Boufous, M. 2011. Maroc: Naissance d’une nouvelle organisation judiciaire. http:// boufous.over-blog.fr/article-maroc-naissance-d-une-nouvelle-organisation-judi ciaire-83670128.html Bulletin Officiel. 2011. Loi marocaine n° 42–10, BO N° 5978: 2080–2084. http://81.192.52.100/BO/fr/2011/bo_5978_fr.pdf Duranti, A. 2015. The anthropology of intentions: Language in a world of others. Cambridge: Cambridge University Press. Engelke, M. 2008. “The objects of evidence.” Journal of the Royal Anthropological Institute 14(IS 1): S1–S21. Gellner, E. 1969. Saints of the Atlas. London: Weidenfeld and Nicolson. Hart, D.M. 1996. “Murder in the market: Penal aspects of Berber customary law in the precolonial Moroccan Rif.” Islamic Law and Society 3(3): 343–371. Hart, D.M. 2000. Tribe and society in rural Morocco. London: Frank Cass. Hoffman, K.E. 2013. “Le serment, les marabouts et la mosquée dans le droit coutumier berbère au Maroc” in R. Verdier, N. Kálnoki and S. Kerneis (eds.), Les justices de l’invisible. Paris: L’Harmattan, 373–390. Jackson, J. and Doran, S. 2010. “Evidence” in D. Patterson (ed.), A companion to philosophy of law and legal theory. Malden: Blackwell-Wiley, 177–178. Johnston, S. 2014. Beyond reasonable doubt: An investigation of doubt, risk, and testimony through performance art processes in relation to systems of legal justice. Wien: LIT. Just, P. 1986. “Let the evidence fit the crime: Evidence, law, and ‘sociological truth’ among the Dou Donggo.” American Ethnologist 13(1): 43–61. Kraus, W. 2005. “Tribal law in the Moroccan High Atlas: Pre-colonial legal practice and its transformations” in W. Dostal and W. Kraus (eds.), Shattering tradition: Custom, law and the individual in the Muslim Mediterranean. London: Tauris, 148–188.

Translating evidentiary practices  129 Kuipers, J. 2013. “Evidence and authority in ethnographic and linguistic perspective.” Annual Review of Anthropology 42: 399–413. Lafrouji, M. 2005. “Droit des coopératives et des associations” Revue Marocaine de Droit des Affaires et des Entreprises. Casablanca: Najah El Jadida. Marcy, G. 1949. Le droit coutumier Zemmour. Paris: Larose. Parnell, P.C. (ed.). 2003. Crime’s power: Anthropologists and the ethnography of crime. New York: Palgrave Macmillan. Peters, R. 2002. “Murder in Khaybar: Some thoughts on the origins of the Qasāma procedure in Islamic law.” Islamic Law and Society 9(2): 132–167. Prodi, P. 1992. Der Eid in der europäischen Verfassungsgeschichte. München: Stiftung Historisches Kolleg. Rosen, L. 1989. The anthropology of justice. Cambridge: Cambridge University Press. Rosen, L. 2000. The justice of Islam. Oxford: Oxford University Press. Schneider, J. and Schneider, P. 2008. “The anthropology of crime and criminalization.” Annual Review of Anthropology 37: 351–373. Shack, W.A. 1979. “Collective oath compurgation in Anglo-Saxon England and African States.” European Journal of Sociology 20: 1–18. Smith, A.R. 2002. “Sedq in Morocco: On communicability, patronage, and partial truth.” Cultural Critique 51(1): 102–142. Turner, B. 2001. “Die Persistenz traditioneller Konfliktregelungsverfahren im Souss; Marokko” in W. Fikentscher (ed.), Begegnung und Konflikt: Eine kulturanthropologische Bestandsaufnahme. München: C.H. Beck, 187–202. Turner, B. 2005. “Der Wald im Dickicht der Gesetze: Transnationales Recht und lokale Rechtspraxis im Arganwald (Marokko).” Entwicklungsethnologie 14 (1/2): 97–117. Turner, B. 2006. “Competing global players in rural Morocco: Upgrading legal arena.” Journal of Legal Pluralism 53/54: 101–139. Turner, B. 2007. “Imposing new concepts of order in rural Morocco: Violence and transnational challenges to local order” in K. von Benda-Beckmann and F. Pirie (eds.), Order and disorder: Anthropological perspectives. Oxford and New York: Berghahn, 90–111. Turner, B. 2013. “Religious subtleties in disputing: Spatiotemporal inscriptions of faith in the nomosphere in rural Morocco” in F. von Benda-Beckmann, K. von BendaBeckmann, M. Ramstedt and B. Turner (eds.), Religion in dispute: Pervasiveness of religious normativity in disputing processes. Basingstoke: Palgrave Macmillan, 55–73. Turner, B. 2014. “Neoliberal politics of resource extraction: Moroccan argan oil.” Forum for Development Studies 41(2): 207–232. Twining, W. 2006. Rethinking evidence: Exploratory essays. Cambridge: Cambridge University Press.

Legal sources Maroc: Code de procédure civile (approuvé par Dahir n° 1–74–447 du 11 ramadan 1394 (28 September 1974)) Dahir portant loi n° 1–74–447 (11 ramadan 1394) approuvant le texte du Code de procédure civile (B.O. 30 septembre 1974), 30 September 1974, available at: http://www.wipo.int/wipolex/fr/text.jsp?file_ id=200316 [accessed 26 August 2015]. Code de procédure pénale [], Dahir n° 1–58–261 du 1er chaabane 1378 (10 février 1959), 10 February 1959, available at: http://www.refworld.org/docid/3ae6b5104. html [accessed 26 August 2015]. Dahir n° 1.59.415 du 28 joumada II 1382 (26 novembre 1962) portant approbation du texte du Code pénal. 26 November 1962, available at: http://lexinter. net/LOTWVers4/dahir_portant_approbation_du_code_penal.htm [accessed 26 August 2015].

8 A faded narrative Reconstruction and restitution in medico-legal expertise in India Fabien Provost

Introduction Medical anthropologists have for long now looked into the status of narratives in patients’ experience of illness and more recently into the narrative processes through which medical knowledge enters in action in clinical situations. One of the key loci in which such processes were identified are the daily informal situations shared by the members of a medical team. However, less attention has been paid to the more formal situations in which only a technical language is used, where no place is left to patients as persons and where pathologies and medical technologies are the agents. Does such a technical, medical language only allow the expression of medical ideas? On the contrary, isn’t it apt to restitute the multiplicity of aspects (social, psychological, circumstantial, etc.) that intervene in the formation of a judgement by a doctor? In this chapter, by relying on my own ethnographic investigation in the context of forensic medicine in India, my aim is to extend the argument of certain scholars who opposed that medical language is necessarily “antinarrative” or it necessarily obstructs elements of judgement. I will hereby present the ethnographic study of the medico-legal examination of two patients who were accusing each other of assault with a knife and whose injuries had to be determined by a medical expert as “self-inflicted or otherwise.” This case, I’ll argue, shows that despite a normative framework that constrains them to writing their descriptions and conclusions in the “language of case presentation” (Anspach, 1988), doctors have the possibility to resort to rhetorical devices to inscribe their interpretation of both the medical and nonmedical aspects of an examination within the medico-legal report. Medico-legal reports produced before a court of law as documentary evidence can therefore not be thought of as mere scientific facts but also as potentially containing themselves, in the midst of the “literary rhetoric of medical discourse” (ibid.) the traces of a judgment: that of the medico-legal expert on the merits of the case.

Medical anthropology and the narrative mode of “chart talk” For more than thirty years now, medical anthropologists have dedicated increasingly careful attention to the status of narratives in medical settings.

A faded narrative  131 Although initially focusing mostly on the narratives of illness recounted by patients (Del Vecchio Good (ed.), 1992; Kleinman, 1988), some scholars decided to tackle the issue of the role narratives play when they emanate from clinicians. Such occurrences of narrative recounting by clinicians were primarily identified during informal situations, within the “clinical stories” that are told “at the interstices of [a medical] professional life”: elevator chat, parties with colleagues, last parts of rather informal meetings, and so on (Mattingly, 1998: 281). In these situations, the language used to narrate patients’ stories is closer to what a commonsense formulation of the situation would sound like. Such a language is distinct from the type of language used in formal medical situations. “Chart talk” (ibid.) or “the language of case presentation” (Anspach, 1988) can be heard when a resident is detailing the clinical history of a patient to a hierarchical superior or when a doctor is presenting a case during a conference. Chart talk is opposed by Mattingly to the manners in which clinical stories are told informally, and it is described as “nonnarrative, even antinarrative” (Mattingly, 1998: 275). Her analyses shed light on patient narratives as “neglected or reorganized through the doctor’s medicalizing discussion” (Mattingly, [1998] 2007: 12). It is also suggested that chart talk, while happening during the doctor-patient interaction, typically reflects upon the trend of orthodox medicine to suppress the patient as a subject from the discourses it produces (Foucault, 1963; Prior, 1989). Medico-legal documents produced in India are formal reports of expertise written by doctors in medicine for, as the definition goes, “the purpose of the administration of justice,” and are written in chart talk. In these texts, the cause of a death or the nature of an injury present on the body of a living patient is stated as an inference drawn out of the observations done on the examined body and mentioned in the report. It is not presented as the chronological end of a reconstruction of the history of the case. “The cause of death to the best of my knowledge is cranio-cerebral injuries,” “death is due to head injury and its complications as a result of blunt force/surface impact” or “shock and hemorrhage as a result of injuries to heart, lung by the projectile of a firearm” are typical formulations of causes of death, although the mention of the compatibility with the alleged manner is sometimes added.1 The type of language we can find in medico-legal reports in India is therefore typical of the four characteristics identified by Anspach (1988) of the language of case presentation.2 Thus, postmortem autopsy reports as well as reports of clinical medico-legal examination of living patients reflect the reductive dimension of the operation consisting in a “symbolic recoding” in a medical form of “literacy” (Cicourel, 1981: 85). In the case of living patients, such a recoding would leave no space in the patient’s subjective account of his or her own condition, and “the patient’s literacy or rationality, even if he or she is highly educated, is no match for the physician’s language” (Cicourel, 1981: 85). Whereas “clinical stories” clearly allow some space for a restitution of both the patient’s and the doctor’s subjectivity, formal accounts, formulated in formal medical language, are described as entirely closing the door to narrative or subjective considerations.

132  Fabien Provost A few scholars, however, denied to chart talk its antinarrative nature, one that would be absolutely distinct from other forms of recounting. After acknowledging the four characteristic features of the medical discourse identified by Anspach (1988), Atkinson regrets that her analysis “fails to capture just how these features are deployed by medical practitioners to produce ‘a case,’ ” in other words that she “misses the poetics of the case presentation itself”(Atkinson, 1995: 94). Atkinson further argues that if it were not for such narrative foundations, the case itself could not hold together. The physician who presents a case produces a narrative, through which the patient’s career is not merely recapitulated, but produced as a career. The story of the case, therefore, encodes the variety of events and observations into a single, more-or-less coherent account, through which events themselves unfold. The story itself may or may not be resolved, in that the case may be on-going. . . . Nevertheless, it is a narrative mode in which the career is assembled and rehearsed before the medical audience. (Atkinson, 1995: 95) The excerpts of medico-legal reports I will hereby provide will contribute to Atkinson’s initiative to work on “how the structuring of medical discourse and medical narratives can be coded, often in complex and subtle ways, to convey a variety of orientations towards facts and opinions about the case” (Atkinson, 1995: 127), in other words to the construction of an “ethnopoetics of medical work” (Atkinson, 1992). We will indeed observe how the formulation of certain aspects of a medico-legal case, still in the language of case presentation, may reflect what I will call an “intention to signify” on the part of the forensic expert. The ethnographic material I will hereby introduce nonetheless presents an important specificity, in that it is aimed not at a medical audience but at judicial purposes. We now enter a field in which performances by doctors that would tend to “convey orientations towards facts and opinions” are not legitimate. On the contrary, a report of scientific expertise is defined by its exteriority from the stakes of the police investigation and by its scientific objectivity with respect to the contemporary criteria of biomedicine. Manuals of forensic medicine are unambiguous: it is not the place of a forensic expert to discuss “the merits of a case” (Reddy, [1973] 2012: 15) and the terms used to describe a condition or to conclude a report “should not be judgmental” (Modi, [1920] 2012: 41). “The medical practitioner should never assume the function of a judge or jury by giving an opinion on the merits of a case” (ibid.: 55). Not only is the perimeter of legitimate activity of a forensic expert officially defined by the Code of Criminal Procedure of India (1865) to the sole observation of the physical body,3 but any reference in a medico-legal report to the psychological, social, familial, cultural and so on circumstances surrounding a case is discouraged as it is potentially sanctioned by lawyers in the course of the subsequent legal procedure.

A faded narrative  133 Therefore, if medico-legal reports, through rhetoric devices, mean actually more than the sum of factual information they contain, they do so with no institutional legitimacy. This is all the more the case as the role of forensic expertise in India was constructed from the colonial period on the premise of the association of medicine with scientific objectivity and with its dissociation from any activity of judgment – as opposed to the system of coroner in place in contemporary England (Burney, 2000).

“In India, where the truth almost always lies deeply concealed”: a sociohistorical approach of scientific objectivity in India In 1868, in view of the lack of experience of most magistrates in India and of the fact that in practice, the judge’s role was not only that of a judge but also that of a jury and of a counsel, the members of the Law Commission of India made the decision that an evidence bill would be written specifically for the Indian context. In March 1872, at the end of several years of discussion, the draft of the Indian Evidence Act proposed by James Fitzjames Stephen was passed. This law of evidence was providing magistrates in India a system of positive rules of evidence, “diametrically opposed to the negative and exclusionary system governing the admissibility of testimony in contemporary England” (Kolsky, 2010: 119). Indeed, in the Principles of Judicial Evidence, which introduce the text of the Indian Evidence Act, Stephen claims the bill is “little more than an attempt to reduce the English law of evidence to the form of express propositions arranged in their natural order, with some modifications rendered necessary by the peculiar circumstances of India”4 (1872: 2). In a section titled “Objects of Scientific Enquiries,” Stephen’s text also introduces the raison d’être of scientific evidence in courts and relates scientific approaches to the idea of truth. “In short, in scientific enquiries, absolute truth, or as near an approach to it as can be made, is the one thing needful, and is the constant object of pursuit” (Stephen, 1872: 28). Dactylography and identification by fingerprinting were developing, whereas photography was gradually accepted as a technique of truth in courts. In the same logic of a reshaping of the criminal investigation with respect to scientific lines, the institutionalization of medical jurisprudence and the introduction of medical officers as expert witnesses in courts “allowed investigators to locate truth in and on the body, therefore solving the perceived problem of oral testimony” (Kolsky, 2010: 120). The idea to resort to medical jurisprudence to extricate evidence directly from bodies is common in medico-legal treatises written specifically for the case of India from the late eighteenth century. These manuals of medical jurisprudence clearly stipulate that the legal apparatus in place must aim to solve the problem of the “uncertainty of general evidence in India” (Chevers, 1870) or “untrustworthiness of native evidence” (Lyon, 1904). Adopting a perspective colored with orientalism, Lyon, author of an influential textbook

134  Fabien Provost of medical jurisprudence that is still referred to in courts nowadays (Baxi, 2014: 61), quotes an excerpt from the Privy Council in which it is deplored that magistrates have to face “the lamentable disregard of truth prevailing amongst the natives of India” (Lyon, 1904: 16). Indeed, lies are described by Lyon as the main obstacle faced by judges in India, whether they emanate from criminals or from law enforcement authorities. On one hand, any witness is to be considered as being potentially “bought” by one party and as potentially alleging false charges before the court. A false testimony can be extremely precise, full of details: hence a testimony should raise suspicion when it is “obviously a ‘too perfect’ kind” (ibid.: 17). Lyon mentions a few cases in which false charges were raised for the murder of someone who later reappeared alive and that actually were situations of conspiracy; he also mentions that confessions can be obtained out of wrongly accused persons. On the other hand, the police department is described as a most corrupt institution. In accordance with colonial perspectives on the police in India (Indian Police Commission, 1902–1903), Lyon depicts policemen who would be inclined to suppress evidence against a bribe as well as likely to extort confessions out of prisoners through torture. “False evidence fabricated by the police” and, in particular, false confessions obtained by “torture or threat through mistaken zeal or other motives” all tend “to obscure the truth” (Lyon, 1904: 18). Again, such practices are understood by the fact that the officers and constables of the “native police” are “drawn from the ranks of the masses” (ibid.). In nearly every case in law, more or less false evidence is given through inherent oriental deceit, fear of incriminating themselves or of offending interested parties, through stupidity, apathy or malice intent. (Lyon, 1904: 16) The medical witness, thanks to objective methods based on scientific knowledge, thus appears as one of the few who are able “to sift the truth out of the falsehood” (Lyon, 1904: 17). Medical testimony so important in every country is especially so in the East, where it is often the only trustworthy evidence upon which hangs the liberty or the life of a human being. (Lyon, 1904: 1) In developing his personal answer to the question “What is truth?,” Chevers conveys the same impression that judges in India, “where the truth always almost lies deeply concealed” (Chevers, 1870: 45), have to show a “painful patience” to “winnow the evidence before them for any grain of truth it may contain” (ibid.: 86). Chevers’s ideas are in accordance with the opinions we find in Lyon’s writings: whereas magistrates struggle and whereas the police provide a high place for corruption, the only reliable

A faded narrative  135 evidence comes from “that silent witness who never lies – the Corpse” (ibid.: 86–87). Numerous manuals of medical jurisprudence thus assert the importance for judicial decisions to be supported by an expertise based on scientific criteria. Yet, their authors say more. In separate sections for oral and written forms of restitution before legal institutions, they give detailed instructions as to how evidence should be presented. Whereas the opinions of medicolegal experts should be inferred without any circumstantial influence, both their oral and written restitutions should demonstrate this absence of bias. Therefore, any trace of the narrative mode likely to be found in them should be suppressed as such elements would suggest the opinion is influenced by sources external to the body or that is in unjustified favor of one of the parties. Such a task involves a rhetoric approach to both the oral and written texts.

The fading of the narrative mode in medico-legal forms of restitution Although it is described as highly important for a doctor dealing with a new medico-legal case to get all the existing information concerning the circumstances of the death, assault, accident and so on, the conclusions of the report are nevertheless supposed to be drawn without referring to the history, merely to the bodily aspects he himself has observed and noted. Any reference to the history of the case or any trace of subjectivity could give the impression the doctor was biased in favor of one of the parties or to invisibly assume the role of a judge. Manuals of course assert, as a matter a principle, that the doctor should not be influenced while giving his opinion. The medical officer should remember that he should always base his opinion on the facts observed by him and must not be influenced by the statements made by others. In drawing conclusions in medico-legal reports, he should not depend upon information derived from any other source. However, if these opinions tally with the information supplied, he should say so in his report. (Modi, [1920] 2012: 41) Pillay summarizes the idea by drawing an analogy between a medical witness’s production of an opinion and a judge’s attitude toward hearsay evidence. In his words, the medical expert’s “opinion must be based upon the observations made by him, and not on hearsay evidence” (Pillay, [1965] 2011: 10). It is nonetheless frequently emphasized that it is equally important to demonstrate there was no external influence. As far as oral depositions are concerned, the advice addressed to a medico-legal expert appearing as an expert witness before the court

136  Fabien Provost does not only concern the substance of the deposition but also the attitude that is expected from the doctor, the verbs and terms he should use while speaking and the clothes he should wear. First of all, Reddy, author of a textbook that is very commonly used by medical students in India, gives the explicit recommendation not to express any opinion based on “the merits of a case” as such a concern could give the impression of an infringement on the perimeter of the judge himself. Yet, it is equally important to present one’s opinions, not like personal intuitions but like scientific deductions: “Say, ‘In my opinion’, do not use a phrase such as ‘I think’, or ‘I imagine’ ” (Reddy, [1973] 2012: 15). The image reflected by an expert should be one of self-confidence as it is recommended his answers be clear and concise. Especially when the questions asked to him by lawyers seem difficult to answer, “[the medical witness] should never lose his temper, but should appear cool and courteous” (Modi, [1920] 2012: 55). In all circumstances, it is advised to give certain impressions to the court by specific bodily attitudes. For instance, one should “look people in the eyes when you speak, for it gives the impression of honesty” or be careful not to “fumble in referring to case notes, records, etc.” because “[t]he less you fumble, the more the court is likely to be impressed by you”. As if to summarize the importance of the expert’s performance in court, the manual stipulates that “appearance, professional manner and general behavior are important” (Reddy, [1973] 2012: 14). The written report, by contrast, obeys an ideal of completeness in the description of the facts and one of concision in its conclusion: “After noting the facts accurately and in detail, the opinion should be expressed briefly and to the point” (Modi, [1920] 2012: 41). Reddy details the qualities of a medico-legal report of autopsy. “The report, he writes, should be detailed, comprehensive, honest, objective and scientific” (Reddy, [1973] 2012: 93). Should we deduce from the claimed scientific character of written forms of restitution that it does not need to respect certain criteria of performance as well? It actually seems that absence of bias and professional authority have to be demonstrated in medico-legal reports as compared to oral testimonies. In all cases, “[t]he report should show competence, lack of bias and offer professional advice” (ibid.: 9). No exaggerated terms, superlatives or epithets expressing one’s feelings should be used. . . . For instance one should never say that “extensive damage to the skull and brain was the result of a particularly brutal, murderous assault,” or “the deceased was evidently subjected to a particularly murderous attack in which throttling was also indulged in.” (Modi, [1920] 2012: 41) Much earlier, this idea had been perfectly crystallized by Lyon, whose claim was that “[t]he ordinary expert acts as an interpreter of facts without having personal knowledge of them” (Lyon, 1904: 10).

A faded narrative  137 Therefore, as well as for oral depositions, it should be taken in consideration that medico-legal written reports should absolutely avoid any trace of the narrative mode appear. References to the history should fade away from the conclusion, which is then supposed to appear as an inference drawn merely from facts observed on the body and noted in the report in complete cognitive autonomy with regard to the circumstances provided by the police in particular. Exaggerated, superlative and judgmental terms are expected to be deleted from the reports. Yet it is only through the empirical observation of medico-legal examination in practice that we can know about the actual extent to which doctors, in their reports, constrain themselves not to comment on the merits of a case. As suggested by Atkinson’s (1992) idea of an ethnopoetics of medical work, the fact that medico-legal reports be solely written in the technical language of case presentation should not discourage us from looking into such texts for traces of subjective and narrative accounts. As an argument in favor of the validity of this idea, we’ll now look into a case observed in the field during an ethnographic investigation to understand how the use of rhetoric devices enabled a doctor to reconstruct his interpretation of the case in the very conclusion of his report.

“The language should be proper”: some traces of the narrative mode in a medico-legal report In early 2014, a woman and her husband were taken by a constable to the department of forensic medicine of the major medical center of New Delhi where I was conducting my ethnographic study. These two patients were accusing each other of assault with a knife, and both of them were presenting incised wounds on their arms, hands and forearms. The requisition letter written by the police officer in charge of the case was requesting the doctor to determine whether the observed injuries were resulting from an act of auto-infliction or not. “During enquiry both husband and wife alleged each other for assaulting. You are requested to opine whether injuries caused to both xxx and xxx are self-inflicted or otherwise.” Whereas the clinical medico-legal examinations I have observed in this department were mostly dealing with the characterization of the seriousness of an injury, the cases in which a forensic expert had to evaluate the possibility that an injury was self-inflicted were particular in one sense. Indeed, authorities, when asking whether an injury is “self-inflicted,” actually request an indication about the author of the injury: is it the patient her or himself or someone else? Literature in forensic medicine is abundant on the issue of self-inflicted injuries, especially when these present a suicidal dimension (Saukko et Knight, 2004). Certain books offer a table that indicates the most common differences between self-inflicted incisions and those resulting from an assault by another person (Dettmeyer, Verhoff and Schütz, 2014). In practice, however, the operational definition used by the doctors of the department I visited was a synthesis of three characteristic elements that can be found in

138  Fabien Provost different textbooks and research articles. Self-inflicted incisions are superficial, performed on an accessible, exposed area of the body and are present on the left side of right-handed individuals and vice versa. Yet, it is also known that certain self-inflicted injuries (like suicidal stab wounds) do not fit these criteria. The case that is presented here makes the doctor’s framing of the context of the case (Dodier, 1998) appear like an essential binder to the circumstantial and medical aspects of the case. I will rely for this purpose on excerpts of interactive sequences that I have noted during and after the two medico-legal examinations carried by the doctor in this case: first, the observation of the woman’s wounds then that of her husband’s. During the first part of the case, the doctor and the constable have a few minutes to chat. The conversation between the two was about how common such cases of self-inflicted incisions are and how criminals were looking to take advantage of their knowledge of the law. In Bombay, compared to here, the place to which I was belonging, many times, such cases happen . . . many times. I’m not saying that the doctor is always correct. . . . Many times the doctor is also wrong, but . . . The constable: Actually, many times the innocent comes under false allegations. That’s right. The doctor: The constable: The offender gets away, but the innocent has to face false allegations. Actually, offenders know how to trick the other. Thieves The doctor: and such people know how to trick others. The doctor:

The doctor then received the woman in his office. He started the examination right away by asking her to tell him her version of the story: “Yes, what happened to you?” Her enunciation of the facts consisted of a story of domestic violence. The woman: We had a fight, [about my] husband’s bail. It’s there in the report. He had asked for it. He was angry because of that. So that led to a major fight. He wasn’t careful and then he got the knife from the kitchen. Then he didn’t use it for a while. . . . And then just when he was about to hit me I tried protecting myself with my hand and . . . and blood started pouring out . . . Hearing me scream, the neighbors also came there. [12 seconds] Then I started bleeding. The neighbors came and they took me, and tied a bandage. The doctor: Do you know why you’ve been called here? To examine your wounds. The wounds can be inflicted by a knife. You could have inflicted them yourself. From this first part of the examination, it may seem like an abrupt way of receiving the patients (no greetings and only one sentence before having her

A faded narrative  139 tell her story) and of informing her of the nature of the examination (the last two sentences make the doctor sound like he did not give credit to her story). Yet it is worth noticing that the doctor did not interrupt once during her flow. He even let her pause for twelve seconds when she started crying and struggling to finish her narration. Then the doctor immediately started the observations of the wounds, sorting out which ones were related to the assault and which ones were older. The examination lasted for a couple of minutes and took place in silence. After the patient left the doctor’s office, the constable asked the doctor his opinion about the wounds. These wounds were problematic inasmuch they did not at all match the practical characterization of self-inflicted injuries. Yet, he was not certain either that they were defense wounds, although this last hypothesis looked more plausible in his eyes. The constable: What do you think, Sir? The doctor: This looks like her husband hit her. Because usually a wound in such a place . . . our training helps us know. In our training, we know, you can’t get away with all the signs. A first confirmation that the doctor was still puzzled by his observations on this first patient is the necessity he felt to know whether she was right- or left-handed. He asked the question to his assistant, who had been there during the whole scene, providing instruments (gloves, rule and cotton patches) when required. The doctor: The assistant: The doctor: The assistant:

Is she right handed or left handed? Right-handed Sure? [To confirm he indeed was sure of his answer:] She has just signed.

This first half of the case also indicates that at that stage already, the doctor was providing an effort of narrative reconstruction. Indeed, he had not only observed that the wounds present on the first patient were not corresponding to the usual characterization of self-inflicted incisions, but he was also placing these observations in the context of the assault. If that woman had not incised her own hands, then “it looks like her husband has hit her.” The two examinations are considered as linked to one another and the underlying question, which moves the doctor is to determine who, among these two patients, had assaulted the other. Yet the hypothesis was, at that moment, still uncertain, as he explained to the constable. In an even more explicit manner, he told me that he was feeling, as he himself described his mood, “pissed off” by this examination. I don’t know, today, I’m not feeling good. The doctor: Fabien Provost: Why? Because of this examination?

140  Fabien Provost The doctor:

Yes! This examination is useless, I can’t give my expert forensic opinion on that. I did not get any good finding.

By this, the doctor meant that he probably would be constrained to conclude his report by the common formulation: “the possibility that these injuries are self-inflicted cannot be ruled out.” This is the usual formulation for the conclusion of a medico-legal report when the examination is negative or uncertain. Nothing more can be written when the wounds observed do not match the practical characterization, but still, the possibility of a selfinfliction remains. After this brief conversation between the doctor and I, the woman’s husband entered the room, and the same pattern was followed to have him tell his version of the story. The doctor: The husband:

The doctor: The husband:

Do you know why you’ve been called here? You were wounded that day, so your wounds have to be examined. What happened exactly on that day? Sir actually that day, I went home like usual. As I entered, she said “don’t enter, go away, I’ll hit you.” Then she opened the gate. Then I entered and sat down. I asked “why are you angry?” She said “Transfer the land to my name! Why haven’t you transferred it yet? Why the delay? I talked to my brother today even he said the same. You tell me today itself you will transfer the land to my name or not. . . . Or you go! I have thought of a cure for this today: I will kill you. Once you die the land is going to be mine. If you don’t want to give it to me while you’re alive, so be it, you’ll have to die and then it’ll be mine.” I said “this is not child’s play, to kill someone, it’s a big deal. Just let it be.” I thought she was joking and I quietly sat down in the corner. Suddenly she came from the back and she started attacking me. So it was a fight over land? Yes.

After this first interruption of a story in which the husband decided to start an account of what her wife was saying before she started attacking him, the husband resumes his narration. He is yet interrupted once again by the doctor, who then attempts to re-shift the interview on the subject of the mode of assault: The husband:

The doctor:

Actually there is case going on in the court. A case under IPC 498,5 the petition has been signed. I want to stay with her. I don’t want to leave her. It’s all about property. Even earlier I had transferred some of my property to her name but she sold it away. She attacked you from the back?

A faded narrative  141 The husband:

The doctor:

Yes Sir. She came from the back. I became alert but then thought “why will she attack me?” I kept thinking it isn’t so easy to kill someone. The moment she grabbed the knife, she started stabbing me. When she stated stabbing me, I tried to save myself. I have been threatened by her brothers also. “Transfer the land” they would say. . . . I bought that from my salary. We had a court hearing [he mentions the date of the hearing]. As soon as I came out of the court . . . so the judge said he’s giving us a week, so I said “fine.” Then her brother asked “will you transfer or not?” They said “transfer it or the consequences won’t be good for you” They have done this to me earlier. Write the patient’s name here.

At that stage, the doctor had not even started his observations on the body of the husband. These two interruptions suggest that the doctor was doubting the authenticity of the story that he was being told. This is all the more obvious when we consider the contrast between these multiple requests for precisions and interruptions and his own attitude in front of the woman. A little later, while observing the forearms of the patient, the doctor’s attention was drawn by a series of incisions on the anterior aspect of the left forearm of the patient. These injuries were perfectly corresponding to the characterization of self-inflicted incisions as they were superficial, on an accessible, exposed area of the body and on the left side of this right-handed patient. The doctor then continued further with a series of questions that were assessing the credibility of the patient. The doctor: The husband: The doctor: The husband:

Do you remember if she ate that day? I don’t think. Can it be while cooking in the kitchen? Is that a possibility? Can be.

Once the examination was done, the doctor informed orally the constable of his opinion about the injuries. With the exception of one that remained ambiguous, these injuries could, according to him, only be self-inflicted. The doctor: Listen, these are self-inflicted injuries. You people should get to understand: he held the knife himself and his hand is wounded. He has wounded himself. Only the wound in the back is a little problematic. I can’t say anything about that. But you have to ask him the shirt he was wearing when he was stabbed in the back. He must have been wearing clothes. A little later during the examination, the constable mentioned that it was now proved that the injuries had been self-inflicted. The doctor immediately

142  Fabien Provost corrected him, because as a forensic expert, he can’t say that these were selfinflicted but only that this could be possible. The constable: But the question is “why will he hurt himself?” The doctor: Yes but I’m not going to prove that this is self-inflicted, just that these injuries being self-inflicted. . . . I mean, the probable cause is self-infliction. The language should be proper. The constable: Yes Sir, that has to be written in a proper language. After the constable came back with the shirt the patient was wearing on the day of the assault, the doctor was finally convinced that all the injuries at stake had been caused by self-infliction. The injury present on the husband’s back could only be but an older one as there was no cut present on the shirt. The end of the conversation of the doctor and the constable gives a clear idea of the doctor’s state of mind during his writing of the report. The doctor: The ones who self-inflict wounds, they only think they have to hurt themselves and then wear the shirt and run. . . . Then if you want prove this . . . you’ll have an advantage, I will write this in my report. It is therefore a consideration of the medical aspects of the bodies of the patients, together with a finer idea of the personalities of the patients and of the motives of the assault, that enabled the doctor to reach the firm conviction that the husband had assaulted his wife and injured himself. In a subtle yet affirmative manner, the conclusion his medico-legal report conveys his own version of the circumstances of the assault as well as his wish to help the police in stopping “the ones who self-inflict wounds,” those who “hurt themselves, wear the shirt and run.” After [proceeding to the forensic examination of] both the patients and perusal of above documents and facts, I am of the opinion that: 1 The remote possibility of the injuries sustained by [the first patient] in a self-infliction manner cannot be ruled out, however this type of injuries are commonly seen in [cases of] defense wounds; 2 The injuries sustained by [the second patient] could be possible in a self-inflicted manner. The section of this conclusion dedicated to the first patient uses the formulation “cannot be ruled out,” which is commonly used by forensic experts to refer to a low level of probability. In addition to this implicit codification of a low level of probability, the possibility is referred to as being “remote,” and the last part of the sentence aims to open, by quoting it explicitly, the hypothesis of defense wounds. It is difficult to imagine how the expert would have written this conclusion with such a level of confidence – in a context in

A faded narrative  143 which he had not put the finger on “any good finding” – if it had not been for the contextual understanding of the wounds as having been inflicted by the husband. The section dedicated to the second patient – the husband – uses the formulation “could be possible,” which is the way doctors encode a high level of probability for a diagnosis. By qualifying as “remote” the hypothesis of auto-infliction for the woman and mentioning explicitly the hypothesis of defense wounds, the doctor expresses in the language of case presentation, in chart talk, the low credibility he was attributing to the story of the assault as narrated by the husband and his firm certitude that he had assaulted his wife – and not the contrary. In other words, the conclusion of the medico-legal reports is a space in which the doctor can inscribe his own interpretation, not only of the self-inflicted nature of the injuries but also of the context in which they were caused. I propose to call this concern by the doctor to make his medical observations meaningful vis-à-vis the history of the case an “intention to signify.” I have observed such an intention to signify in a certain number of clinical and postmortem medico-legal situations. Certain doctors, for instance, suggest a qualification for the “manner of death” in the conclusions of their reports, whereas this does not constitute an expectation of a police inquest. To account for his initiatives, one doctor told me that they are a consequence of his interest for the North American system of medical examiner. That gives hint towards that, this thing has been inflicted through assault. Ideal way to write cause of death in this case is, if I go for international standard, “homicide by unspecified means.” Then, another thing is, I have, for the investigation purpose, I have to give a lead to the investigating agency so that in a court of law, there won’t be any conflicts between the investigation part and from the doctor side. It may also be a desire for the enforcement of a moral or social justice. In this other situation, the method to which the doctor resorted was precisely the opposite, that is, he decided not to mention the manner of death. The police was alleging that he has sustained injury with knife accidentally. When I was conducting the autopsy, my opinion was “this is a case of suicide.” The circumstances they were letting me know, they were not corroborating with the injury he had sustained. Ultimately, by the time one of the family members he came here and told me “doctor, he [was] suffering from the HIV. He [was] HIV positive.” So ultimately I found the reason why he had committed suicide. When it came to the writing, I haven’t commented on the manner. I simply wrote down, this [man] died due to this and this, “sharp force injury over abdomen leading to hemorrhagic shock.” Thereafter, when I became very, very conscious during the autopsy. I enquired [about] both of the family members. So his wife was also infected. Only two small kids, who are negative, HIV

144  Fabien Provost negative. . . . No criminal act is there. The thing is, by saying this thing, “suicide,” I can’t withhold their insurance claims. So both kids, they have to grow up, they have many rights, I can’t infringe them. It should nonetheless not be assumed that all doctors thus impart an intention to signify upon their medico-legal writing. In fact, many doctors would not venture toward such practices because “manner of death is not [their] duty.” One of my informants, who initially had the habit of specifying in his reports of postmortem autopsies, whenever the cause of death was compatible with the alleged manner provided by the police, eventually gave up on that practice after he once suggested an erroneous manner of death. By presenting this case, my aim was therefore to highlight a possible way of using rhetoric tools to translate an intention to signify into medical language and not to suggest the prevalence of such practices.

Conclusion In the end of a case study that has shed light on the narrative preoccupations of the various actors who intervene in the process of production of evidence, I have insisted on the rhetorical means by which a doctor, while keeping the usual register of language of medico-legal conclusions, can manage to reconstruct in the report itself his personal views related to both the history of the case and the respective innocence and guilt of the examined patients. Whereas a judgement by the medico-legal expert may be inscribed within the conclusion of the report, this judgement is carefully concealed, melted within the rhetoric of the medical language of case presentation. Such a phenomenon casts further doubt upon the idea of an antinarrative technical medical language. More generally, it disturbs our conception of scientific evidence not only in that which medical evidence does practically require contextual information to be produced but also because this evidence can reflect on the judgement of the expert on the merits of the case. In other words, the medico-legal report constitutes a possible space for subjective inscriptions by means of the “literary rhetoric of medical discourse” (Anspach, 1988), which would then undetectably be articulated to the official proceedings of legal institutions.

Notes 1 Timmermans (2006) has given an account of the debates that have divided forensic experts and medico-legal systems over the world about the role to attribute to circumstantial data in the practice of forensic expertise. Let’s take, for instance, the case of death investigation. In the United States, it seems logical to resort to such data as medical examiners are supposed to give an indication as to the “manner of death”: suicidal, homicidal, accidental, natural or undetermined. In India, where forensic experts are not supposed to qualify this manner of death, circumstantial data has a more ambiguous status, as, as we will see, at the same time a doctor should be aware of these aspects but should not refer to them in the formulation of his conclusions.

A faded narrative  145 2 “1) the separation of biological processes from the person (depersonalization); 2) omission of the agent (e.g. use of the passive voice; 3) treating medical technology as agent; and 4) account markers, such as ‘states’, ‘reports’ and ‘denies’, which emphasize the subjectivity of patient accounts” (Anspach, 1988). 3 The visit of the “scene of crime” is, in the Indian medico-legal system, nothing more than a possibility that is seldom seized by departments already overburdened with medico-legal cases and court deposals. In practice in India, only the police visit the scene of crime. 4 The way the law of evidence of India was codified in relation to a difference perceived by colonial authorities between the contexts of England and of India is representative of what Kolsky (2005) called “the rule of colonial difference,” thus referring to the codification period in India. 5 The husband was meaning “article 498A of the Indian Penal Code (IPC),” an amendment to the Indian Penal Code of 1983, which is sometimes referred to as “dowry law” and states the following: “Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.” In India, this law is sometimes described as too often “misused” for purposes of extortion, although the extent of such a phenomenon has, as of now, not yet been documented. Since the Supreme Court of India called such cases a form of “legal terrorism” (Law Commission of India, 2012), this phrase has been abundantly used in the media and on the Internet, especially on the websites that offer to help men who would be victims of such misuses. In the interaction we follow in this section of the chapter, it is the husband himself who exposes to the doctor the fact of this ongoing case. This mention is therefore probably aimed at further sketching the portrait he was drawing of a venal wife, not unaccustomed with false cases.

References Anspach, R. 1988. “Notes on the sociology of medical discourse: The language of case presentation.” Journal of Health and Social Behavior 29(4): 357–375. Atkinson, P. 1992. “The ethnography of a medical setting: Reading, writing, and rhetoric.” Qualitative Health Research 2(4): 451–474. Atkinson, P. 1995. Medical talk and medical work: The liturgy of the clinic. London: Sage. Baxi, P. 2014. Public secrets of law: Rape trials in India. New Delhi: Oxford University Press. Burney, I.A. 2000. Bodies of evidence: Medicine and the politics of the English inquest, 1830–1926. Baltimore: Johns Hopkins University Press. Chevers, N. 1870. A manual of medical jurisprudence for India: Including the outline of a history of crime against the person in India. Calcutta: Thacker, Spink and Co. Cicourel, A.V. 1981. “Language and the structure of belief in medical communication.” Studia Linguistica 35(1/2): 71–85. Del Vecchio Good, M.J. (ed.). 1992. Pain as human experience: An anthropological perspective. Berkeley: University of California Press. Dettmeyer, R., Verhoff, M.A. and Schütz, H.F. 2014. Forensic medicine: Fundamentals and perspectives. Berlin: Springer. Dodier, N. 1998. “Clinical practice and procedures in occupational medicine: A study of the framing of individuals” in M. Berg and A. Mol (eds.), Differences in medicine: Unraveling practices, techniques, and bodies. Durham: Duke University Press, 53–85.

146  Fabien Provost Foucault, M. 1963. Naissance de la clinique: Une archéologie du regard médical. Paris: Presses Universitaires de France. The Indian Police Commission. 1902–1903. “History of police organization in India and Indian villages, Report of the Indian Police Commission.” Kleinman, A. 1988. The illness narratives: Suffering, healing, and the human condition. New York: Basic Books. Kolsky, E. 2005. “Codification and the rule of colonial difference: Criminal procedure in British India.” Law and History Review 23(3): 631–683. Kolsky, E. 2010. Colonial justice in British India: White violence and the rule of law. Cambridge: Cambridge University Press. Law Commission of India. 2012. “243rd Report on Section 498A IPC.” Lyon, I.B. 1904. Medical jurisprudence for India, with illustrative cases. Calcutta: Thacker, Spink and Co. Mattingly, C. 1998. “In search of the good: Narrative reasoning in clinical practice.” Medical Anthropology Quarterly 12(3): 273–297. Mattingly, C. 2007 [1998]. Healing dramas and clinical plots: The narrative structure of experience. Cambridge: Cambridge University Press. Modi, J.P. 1920. Medical jurisprudence and toxicology for India. Calcutta: Butterworth & Co. Modi, J.P. 2012 [1920]. A textbook of medical jurisprudence. Gurgaon: Lexis Nexis. Pillay, V.V. (ed.). 2011 [1965]. Textbook of forensic medicine and toxicology. Hyderabad: Paras Medical Publisher. Prior, L. 1989. The social organisation of death: Medical discourse and social practices in Belfast. Basingstoke: Palgrave Macmillan. Reddy, N.K. 2012 [1973]. The essentials of forensic medicine and toxicology. Hyderabad: K. Suguna Devi. Saukko, P. and et Knight, B. (eds.). 2004. Knight’s forensic pathology: Third edition. Boca Raton: CRC Press. Stephen, J.F. 1872. “The principles of judicial jurisprudence being an introduction of the Indian evidence act” in The Indian evidence act with an introduction of principles of judicial jurisprudence. London: MacMillan and Co, 1–134. Timmermans, S. 2006. Postmortem: How medical examiners explain suspicious deaths. Chicago: The University of Chicago Press.

9 Technologies of truth and access to justice Becoming an apartheid victim in contemporary South Africa Liliane Umubyeyi The last quarter of 20th century witnessed a major transformation in the response to mass crimes. Understanding logics of violence and exploring the “truth” has become an essential imperative in efforts to prevent new cycles of violence (Rotberg, 2000: 3–21). Indeed, the development of truth and reconciliation commissions in the late 1980s contributed greatly to the spread of the idea that knowing “the truth” is a form of justice. Accordingly, technological tools were adopted in communities of human rights professionals to assemble and understand a critical mass of information about political violence (Ball, Spirer and Spirer, 2005: 3). These technologies of truth have taken the form of information management systems in which violent acts are collected in a standardized way, stored, analyzed, and matched to amplify the quantity of information. Drawing on large databases, correlations between violent acts are established to generate more statistical information and produce a more accurate “collective memory of the violent event, independent of individual memory” (Ball, Spirer and Spirer, 2005: 1). In 2002 Khulumani Support Group (Khulumani), a leading apartheid victim organization in South Africa, started to challenge the number of victims listed by the South African Truth and Reconciliation Commission (TRC). In accordance with its mission, the TRC published a report in 1998 on the scope and effects of apartheid. In this report, the commission established that there had only been 22,000 victims of apartheid.1 In response, Khulumani adopted a database in the early 2000s that aimed to contest both the definition and accounting of apartheid crimes by the TRC. Their goal was to demonstrate that the number of victims was far greater than 22,000. While Khulumani’s database has been put to a variety of uses having to do with the political mobilization of apartheid victims, one of its most important functions has been to provide evidence of violence for legal proceedings initiated by human rights professionals to redress apartheid injustices. In these collaborations, Khulumani’s main contribution has been to identify members in its database who might be able to become plaintiffs in those trials. As I have argued elsewhere (Umubyeyi, 2015: 73–88), this database facilitated the defense of apartheid reparations by human rights professionals by enabling human rights actors to obtain evidence and gain access to potential plaintiffs who could strengthen their cases. In the present chapter,

148  Liliane Umubyeyi I focus on a different category of users of this database, specifically people claiming apartheid victim status. I interrogate how South African citizens claiming apartheid victim status mobilize the Khulumani database to that end. My analysis is guided by the following question: to what extent has this instrument enabled South African citizens to circumvent TRC obstacles in their efforts to obtain apartheid victim status and, thereby, reparations? For many years, literature on victims’ protests has shown that victim status is acquired through the performance of a series of administrative, legal, or medical tests to which a person is subjected or that he or she has to delegate (Lefranc and Mathieu, 2009: 14; Roussel, 2009: 101). As Sandrine Lefranc and Lilian Mathieu have stated, being recognized as a victim is the result of a process of “status production,” which starts from being aware of one’s victim condition and culminates in the expression of a claim that might involve the contribution of different actors. This literature has focused on the emergence of a “victim career” and the necessary conditions of its maintenance. While they have taken these moments of tests into account, anthropologists have nuanced actors’ performances of this “victim career” in the case of uncertain political and economic contexts. For instance, Adriana Petryna highlighted how Ukrainian citizens, faced with the difficulties of their country’s economic transition to capitalism, mobilized the status of “Chernobyl disaster victim” in efforts to benefit from state compensation (Petryna, 2002). Similarly, in her ethnography of aid development mechanisms and processes in Haiti, Erica Caple James showed how some Haitian citizens constituted a “trauma portfolio” as a strategy for gaining recognition as “viktim,” and, thereby, as beneficiaries by international donors (James, 2010). By and large, however, this literature suggests that we are dealing either with “real” victims who manage to claim their status or with “false” victims who divert the status. In this chapter, I would like to draw from the South African context to broaden the spectrum of situations in which actors shape their victim status. Taking distance from a dichotomous view, I highlight a range of ways in which individuals negotiate victim status using the Khulumani database. Based on interviews conducted with 35 South Africans who resorted to the Khulumani database, I show three different forms of appropriations of this “technology of truth,” as I denote the database. I demonstrate how the database enabled individuals to reinterpret injustices they suffered during apartheid times as a form of violence resulting from the apartheid system and therefore to claim victim status. I start this chapter by briefly retracing the development of the Khulumani database as a means of challenging apartheid truths produced by the TRC in the context of the transition to democracy. Then in the second part, I use different cases of individuals who contested this apartheid truth through the use of the Khulumani database: African National Congress (ANC) veterans, Worcester bombings victims, and people who deliberately refused to participate in the TRC victim sessions. In each of these cases, enrollment in the Khulumani database and the access to justice that it made possible

Technologies of truth and access to justice  149 enabled South African citizens to reconnect and translate their complaints into apartheid crimes and thus to circumvent obstacles to justice imposed by the TRC.

The Khulumani database: an appeal to technological tools to contest the apartheid truth Truth at the time of transition to democracy in South Africa In the mid-1990s, the newly elected South African government established the TRC in charge of providing a complete picture of the nature, the causes, and the extent of human rights violations committed between March 1, 1960 (Sharpeville massacres), and May 11, 1994 (first free elections).2 This commission was also in charge of granting amnesty to people who made full disclosure of their crimes and of recommending reparations measures. At the beginning of its mission, the TRC decided to define apartheid crimes as human rights violations, understood as damage to individual physical integrity.3 This definition consequently involved a distribution of responsibilities that outlined who could be considered as perpetrators and who could be referred to as victims. This definition of apartheid injustices – its focus on the physical integrity of individuals and the fact that the commission set aside the complex social structure created by colonialism, apartheid, and the various forms of ensuing resistance – has been highly criticized (Mamdani, 2001). Critics have argued that this definition rendered invisible the different subjectivities produced by the relationships among the various groups implicated in apartheid-era South Africa (Ross, 2003: 1). In Fiona Ross’s terms, apartheid violence was reduced to marks on bodies, and the marks’ historical depth was entirely removed. Besides the definition of apartheid crimes, criticism – coming especially from victims of the Worcester bombings – has also extended to the time frame for determining which crimes to include. In fact, on December 24, 1996, two and a half years after the first free elections in South Africa, two bombs exploded in downtown Worcester, a small, rural town located 100 kilometers northeast of Cape Town. The first bomb was triggered in Shoprite, a supermarket mostly frequented by black and colored populations and in which a large number of customers on this Christmas Eve were buying groceries for the holiday. The second bomb exploded right next to a pharmacy. Four people died immediately, another two later in the hospital, and 70 more were injured. Days later, the South African police arrested the four perpetrators of this attack, members of a far right-wing group advocating the supremacy of the white race. The four men were tried and sentenced to long prison terms that they are still serving today. Although these acts were obviously related to apartheid crimes – the attacks were committed against black and colored people by a group promoting white supremacy – victims of the bombings were excluded from the TRC’s reparation programs. This is because the attacks were perpetrated

150  Liliane Umubyeyi outside the time frame that the TRC had delineated for “apartheid crimes”; that is to say, from March 1, 1960 (Sharpeville massacre), to May 11, 1994 (first free elections). In addition to the exclusion of these victims from the process of reparations, the transition to democracy also involved a selection among members of liberation movements. Before coming to power in 1994, the ANC experienced significant changes, shifting from a liberation movement to a political party governing a country. Thus, it had to be restructured to redistribute power and establish government leadership positions. The transformation sought by this restructuring proved challenging as it called for the integration of various members of the ANC’s military wing, Umkhonto We Sizwe, into South Africa’s conventional armed forces (Ottaway, 1991: 61–68). Many freedom fighters, who were considered unqualified and insufficiently trained, were excluded from the reorganized ANC. A further organizational challenge had to be met, beyond military integration, namely the relative political status of returned exiles and freedom fighters post 1994. As Laetitia Bucaille has written, the majority of new South African elites who started to occupy leadership positions at the moment of transition to democracy had previously lived in exile, whereas many freedom fighters who had served as ordinary soldiers had limited access to power structures, administrative positions, or other resources (Bucaille, 2006: 149). Indeed, while the ANC’s takeover of power in 1994 secured government positions for many freedom fighters, it also led to the exclusion of some antiapartheid fighters. The absence of authorities and spaces for contesting this denial of reparations to certain segments of the population led many to resort to the Khulumani database, an instrument originally set up to challenge the limits of the TRC’s telling of apartheid truth. A weapon to contest the apartheid truth: the Khulumani database The development of a database by Khulumani was part of an overall strategy for challenging the “truth” produced by the TRC on apartheid violence. For example, in a report published in October 2003 on reparations to victims of apartheid, Khulumani asked the South African government to review the process of identification of persons recognized as victims because TRC practices were in many respects flawed. In this report, Khulumani stated: Many victims have fallen through the gaps. . . . There needs to be an ongoing process of identifying people who were left out and of documenting their cases. Some of these gaps include:4 • Failure to officially recognize victims in cases where perpetrators have been granting amnesty • Failure to recognize a person as a victim and to mistakenly name them as a “witness” which results in their exclusion in reparations payments

Technologies of truth and access to justice  151 • Victims who were excluded through administrative mistakes made by the TRC • Victims who were excluded on the basis of potentially unfair rules of the TRC in respect of evidence • Victims who were excluded on the basis of being mentally disoriented subsequent to being traumatized • Cases of victims which were rejected by the TRC because the motives of the perpetrators in these cases, were not clearly identified as being political • The consequences to victims of situations where the TRC Act was sometimes conservatively interpreted in respect of the recognition of victims • Situations where the decisions of the TRC could be interpreted as being arbitrary, resulting in unfair exclusions; and • Situations where the TRC forms did not contain adequate information from victims in terms of the redress requested by them. In this report, Khulumani contested the TRC’s identification practices on different grounds. First of all, Khulumani challenged the fact that perpetrators had been granted amnesty when their victims had not been identified, which the organization understood as a failure in establishing the apartheid truth because it ignored victims’ versions of events. In addition, Khulumani criticized the fact that people who could have been considered victims were categorized as witnesses. Overall, Khulumani denounced TRC interpretations on the basis that its identifications procedures were irregular, unfair, and inaccurate. Given these flaws, Khulumani called on the government to integrate new people into the reparations process and to set up a system identifying their needs. Khulumani also suggested that the government remove the time limits on access to reparations since victims of violence can take several years to speak up. It is important to note that at the time of the submission of this report, Khulumani had already begun to establish its database, collecting information by means of a questionnaire (see Figure 9.1). Khulumani field workers were in charge of having local branch members fill in the questionnaire, which included guidelines on the needs of organization members and the kinds of violence members registered in the database have experienced. While this Khulumani tool originally served to put pressure on the South African government and to push it to review its reparations process to apartheid victims, it was also used to serve legal proceedings launched by a coalition of human rights organizations and Khulumani. In fact, starting in 2002, Khulumani, in collaboration with human rights professionals, initiated a range of lawsuits against the South African government and multinational corporations. Before American courts, these corporations were accused of having aided and abetted the apartheid regime by providing financial and material resources. Before South African courts, the government was sued for trying to renew the amnesty process in its reparation

152  Liliane Umubyeyi Suggestions for the needs assessment survey questionnaire structure (NAS) 1  Background to the NAS Process • • • •

Introduce yourself and the exercise. Purpose: explain why you are conducting NAS. Explain how the information is being sought and how it will be used. Always assure the interviewee about the confidentiality of the exercise, and so on.

2  Details of the Interview 2.1 Name of interviewer................................................ Position........................ 2.2 Date of the interview..................................................................................... 2.3 Project locality.............................................................................................. 3  Details of the Respondent 3.1 Name of the respondent................................................................................ 3.2 Residential address........................................................................................ 3.3 Gender.......................................................................................................... 3.4 Number of children....................................................................................... 3.5 Highest education attained............................................................................ 3.6 Name of institution....................................................................................... 3.7 Name of next kin.................................................... Relation........................ 3.8 Contact address............................................................................................ 3.9 What support do you get from family members?.......................................... 4  Scope of Victimization 4.1 What was the nature of the victimization ?.................................................... 4.2 When did it take place?................................................................................. 4.3 What happened after that?............................................................................ 4.4 What impact did this have on you ?............................................................... 4.5 What type of moral, psychological, physical, medical, or economical support have you received after that?................................................................. 4.6 How are you coping with it?......................................................................... Figure 9.1  Khulumani Support Group Draft Community Needs Assessment Sample

policy and for not having consulted victims in the pardons process. In all these lawsuits, the Khulumani database played a fundamental role insofar as lawyers had access to victims’ stories and could identify those who could provide evidence of the state or corporations’ responsibility. Hence, the database served as a reservoir of information that could be used in the courts of law. In the following section, I focus on ways in which people who

Technologies of truth and access to justice  153 had not previously been recognized as apartheid victim used this database to reinterpret their status and thus circumvent TRC limitations.

Becoming an apartheid victim, for lack of anything better From freedom fighter to apartheid victim: the Khulumani database as a space for reconfiguring political identity As discussed previously, when the ANC took power in the mid-1990s, some freedom fighters did not gain access to employment in the government or in the new South African army, as they had hoped. Being denied these positions has been a source of bitter resentment and feelings of deep injustice on the part of these freedom fighters as many interpreted this exclusion as a lack of recognition of their sacrifice for the liberation of the country. In this sense, for these men and women, the transition to democracy did not represent a rupture with violence but, rather, was the continuation of an uninterrupted stream of indignities. However, in these freedom fighters’ accounts, as we will see, resorting to apartheid victim identity did not replace combatant status; these two identities coexist and help to sustain another. John Manning’s story allows us to understand how the Khulumani database was used as a platform to challenge injustices faced by freedom fighters whose involvement in the liberation struggle was not recognized by the TRC reparations system/process. I met John Manning, a colored6 man in his early 40s, in 2011 through the Institute for Justice and Reconciliation. This South African NGO organizes programs of reconstruction and community reconciliation in which John Manning had been participating when we met. I conducted the interview at his home in a colored township in the extreme South of Western Cape province. He lived in precarious conditions in a modest house of about 45 square meters with his wife, his two children, and another relative. He began the interview by explaining that he started his career in the liberation struggle while he was still a teenager. Born in a colored family, he became aware of the policies of the apartheid state in public transports where colored people were neither allowed to sit in places reserved for white people nor could they sit with African people. Although his parents advised him to comply with apartheid regime policies, he joined a student organization advocating for the boycott of the apartheid education system. In this organization, they considered that the education provided by the apartheid regime aimed to make people accept and comply with the racist policies of the state. John proudly stated the organization’s motto at that time: “Liberation before education.” At the age of 15, he abandoned peaceful resistance to form with some of his comrades an organization with a military wing, operating covertly: the Bonteheuwel Military Wing, named after the township where they originated. At a time when the ANC political agenda was to make townships

154  Liliane Umubyeyi ungovernable, this organization assisted the ANC’s military wing, Umkhonto we Sizwe. As was the case for many of the freedom fighters I interviewed, John Manning described his involvement in the struggle against the apartheid regime and his multiple detentions by security forces in great detail. In the late 1980s, he was arrested, imprisoned, and tortured in the course of interrogation. However, he managed to escape a verdict due to a legal irregularity pleaded by his lawyer, who had been sent by the ANC. As John spoke, the pride with which he talked about his commitment to the liberation struggle contrasted with the bitterness and disappointment with which he described what followed the collapse of the apartheid regime. After the agreements between the ANC and the National Party – the party that had introduced apartheid policies – concerning the establishment of a South African army in the early 1990s, John Manning and his comrades in the Bonteheuwel Military Wing were excluded. During our interview, he explained that the ANC had refused to recognize the presence of underage children in the armed struggle. He described the upheavals of this period in these terms: Our careers were supposed to be military but I think our documents disappeared, you know, we phoned and phoned and we said that we were part of this structure and they disappeared in abnormal way. So we were left naked in 1990s, you know, with no education, with nothing. Liberation came and we were part of the celebration but nothing; we were totally rejected by the liberation movement . . . We were very angry, we were lost, we were confused, and we didn’t know if we had to take bombs again! Our own government is celebrating democracy and we’re walking in the streets, we’re not employed, we were doing all kinds of works.7 Thus, after the violence suffered during the struggle years came betrayal and abandonment from the ANC. John Manning and his comrades saw their hopes of joining the army shattered and found themselves stripped of any form of recognition. They even considered violence as a possible way of responding to this injustice. Nevertheless, John Manning and his comrades decided to claim their apartheid victim status. For John Manning, the period of transition to democracy constituted a turning point in that like many freedom fighters, it changed his understanding of his prior commitment to the liberation struggle. Indeed, as another freedom fighter explained, the rejection from the liberation movement corresponded to the rejection from the communities the fighters came from: I felt like an outcast after I was released from prison and I even attempted suicide because I thought that life was not worth living, like I’m nothing. I did not see myself as a freedom fighter because in my community in Langa, or even in Guguletu or other communities, we’re

Technologies of truth and access to justice  155 not acknowledged, we’re not taken seriously like in the seventies when we were considered as a role model and things have changed. We’re not taken into consideration by our own people that we fought for. And we could not be employed anywhere because we had a very bad record and in the townships we were taken as laughing stocks, especially when they are drunk, they would say, “look, I’m driving a car, I’m driving a BMW, what has your organization done for you?” However, even though John Manning, like other freedom fighters, felt betrayed, he remained a fervent ANC activist: I can’t go anywhere, my blood is in the African National Congress, my ideology comes from there, so it’s not to say that I can’t join another party but I just feel that this is where I come from, nobody told me to stay and I don’t know if I will stay till the end of the days in the ANC, yes but my blood is in the ANC.8 Instead of leaving the party, John Manning joined another structure able to help him face postapartheid life as a freedom fighter. He registered in the Khulumani database and claimed apartheid victim status. Apartheid victim status does not replace freedom fighter status. Rather, the two coexist, as illustrated in this statement by John concerning the readjustment of his status: 1996 came and about 20 of us decided to go and tell our stories, because we could say “yes, we were soldiers” but we could say that we were victims also because the police didn’t treat us well, we were captured, most of the time, we couldn’t see lawyers while we were in solitary confinement, we were beaten up.9 This quote illustrates the kind of adjustment that John Manning and other freedom fighters in his situation made to face their postapartheid suffering. This reinterpretation led John to see himself not only as a military combatant but also as a victim of the apartheid system. In that sense, he did not divert the apartheid victim status, but rather, he redefined his experience. The Khulumani database allowed him to avoid the liberation movements’ limitations and constraints and constituted a space for him to reconfigure his political identity. Using the Khulumani database in the absence of other forms of reparations: Worcester victims and their claim for justice In the late 1990s, after the prison sentencing of the Worcester bombers, the South African government and the Shoprite supermarket chain refused to pay any significant compensation to bombing victims. However, 15 years later, a South African NGO, called Restitution Foundation, solicited these

156  Liliane Umubyeyi victims, offering them a reconciliation program as a form of reparation of their sufferings. This NGO was created following an initiative of actors from different religious congregations to tackle consequences of the apartheid system. It aimed to implement projects promoting “restitution” from South African citizens who benefited from apartheid to those who suffered from it. Therefore, the Restitution Foundation set up the project “Worcester Hope and Reconciliation Process” (WHRP), which intended to initiate a dialogue between different communities in Worcester. The project’s entry point was the bomb attacks since they symbolized the climax in community tensions. However, this project did not aim to claim reparations for the victims but rather to bring light to the psychological trauma and socioeconomic consequences of decades of colonial and apartheid systems. The WHRP also did not include interpersonal reconciliation programs since several meetings between victims of the bombings and one the perpetrators had been organized in collaboration with correctional services. After their participation in this project, some victims were solicited by Khulumani to bring their story into the database. In the same way as freedom fighters who had recourse to the Khulumani database to face the absence of recognition from liberation movements, Worcester bombings victims looked to the database to demand recognition. I interviewed victims of the bomb attacks to understand how they circulated among reparations tools and how they finally mobilized the Khulumani database. It appeared that the absence of reparations from the South African state and Shoprite supermarket, interpreted as a lack of interest by many victims, had produced resentment among them. For example, for Shoprite employees, the violence of the event did not only lie in the bombs attacks, but it also characterized managers’ lack of compassion, “so typical of their behavior,” as one employee said. Some cashiers noted that they were asked to return to work three days after the explosion and were threatened with dismissal. This return to work was even more difficult since a week before the bomb attacks, the same supermarket had been burglarized and the managers then too had not wanted to close the store. One of the cashiers, Martha Lambert, a 38-year-old colored woman explained this feeling of abandonment: If the company cared enough, it would have given us assistance. We wouldn’t have to ask but they don’t care. We had just 2 or 3 days and we had to go work again after the bomb. We were scared, we did not want to go in the shop but they didn’t care; not even a week. And the Saturday before, we had a robbery as well. At the time, the same day, we opened the shop; we were traumatized because there were police, men with guns.10 Thus, for bombing victims like Martha Lambert, the unfairness of this event was not only related to the physical or psychological injury inflicted by the

Technologies of truth and access to justice  157 attacks but also to victims’ feelings of having been abandoned by actors – the company and the state – that they believed should have supported their suffering. Francis Martin, nearing his 50s, was another victim of the Worcester bombings. When I met him, he lived in a colored, middle-class residential neighborhood and owned a construction and decoration company of a dozen employees. Like many colored victims of the bombs attacks, Francis Martin rarely presented apartheid as the cause of injustices he currently endured. He rather situated the beginning of this “victim career” in 1996, at the moment of the bombs attacks. In 1996, on Christmas Eve, Francis Martin was preparing to go on holiday with his family, when he learned that his 9-year-old daughter had been injured in the Shoprite supermarket while shopping for last-minute groceries with his wife. Advised by his daughter’s pediatrician to avoid Worcester hospital, where all the victims were treated, he brought her to a private, specialized clinic. Similarly, he refused to resort to the psychological support services offered by the municipality and decided to use a private service. As a result of this tragedy, Francis Martin explains that he had to sell his house and two cars to cover all the medical expenses that involved a skin graft and psychological care expenses for the whole family. Before mobilizing the Khulumani database, Francis Martin first demanded the reimbursement of all the expenses from the Worcester municipality, with no response. He also contacted several members of ministerial cabinets but failed to obtain information about a compensation fund believed to have been created by the Mandela government but whose fate remained unknown. Fifteen years after taking these steps, Martin Francis, like the other victims of the Worcester bombs attacks, was asked by the WHRP coordinators to participate in reconciliation programs and victims-offender dialogue. Martin Francis strongly criticized the WHRP approach on the basis that coordinators of the program cared more about the perpetrators of the attacks than about helping the victims: I’m sitting in the meetings and listen to them. There’s nothing that they can do for us. It’s only what they can do and what they’re going to do for the perpetrators. If you look at the rights of the perpetrators, we don’t have the same rights. They gave us a psychologist to work with us. But a psychologist can’t work with people 15 years later. They open the wounds. 15 years, victims have forgotten what happened. They tried to make things better for us but in my personal case, they made things difficult. They open the wound.11 For Martin Francis, the lack of interest in the bombings victims’ fate was reflected in the way the WHRP neglected victims’ needs. Though victims had received psychological help, this assistance, he says, had counterproductive effects because it unearthed a past that had been buried. Therefore, there was a sort of dissonance between justice as thought and implemented

158  Liliane Umubyeyi by WHRP and that requested by victims like Martin Francis. This discrepancy appears in another statement by Francis: All I want is that the government refunds us for medical expenses and those kinds of things. Because there’s a lot of people who need help; you can’t go on this gravy train [WHRP] and you’re not right inside. Hope and reconciliation come not from that. It comes from your heart.12 According to Martin Francis, the true form of justice would be the payment of financial compensation to victims that would enable them to pay off medical bills. Reconciliation should be a different goal, one that he says should be initiated by victims and that can only come once material needs have been fulfilled. For him, reconciliation cannot be imposed. Since the Khulumani database allowed apartheid victims to make claims for financial reparations, he registered in it in an effort to have his expenses refunded. Like John Manning, the cases of Martin Francis and Martha Lambert illustrate the failure of private and public structures to help certain categories of individuals face injustices of the past. Forms of justice offered by the state, such as prison sentencing of the perpetrators of the Worcester bombings or by the NGO Restitution Foundation, did not satisfy these individuals’ sense of the justice they were owed. In this context, the database established by Khulumani represented an alternative to the deficiencies of these other structures. Thus, the apartheid victim category offered means for action – claiming reparations for the past – that no longer exist in contemporary South Africa. Challenging the apartheid truth through trials As indicated previously, the Khulumani database served to provide victim profiles to lawyers who could present these individuals as the main plaintiffs in trials initiated by Khulumani and human rights professionals. One of these trials extended the TRC definition of apartheid crime to include, for example, the black population’s deprivation from South African citizenship as well as a host of other discriminatory policies. Launched in 2002, this trial targeted multinational corporations, accusing them of having furnished resources to the South African state that enabled it to apply apartheid policies. In this lawsuit, people who were not recognized as victims before the TRC had the opportunity to now claim this status. The case of Patekile Namane, a black professor in his mid-50s, illustrates the opportunity offered by the Khulumani database to contest TRC limitations. At the time of our interview in 2011, Patekile Namane was teaching in the African Studies department of a prestigious South African university. His research topics related to land redistribution in South Africa. Although he was a former antiapartheid activist, he never belonged to any particular resistance movement and refused to become a member of a particular

Technologies of truth and access to justice  159 political party because, as he said, he had no respect for actual politics. When talking about his life during apartheid, Patekile Namane mentioned rapidly and evasively that he was arrested several times but that he never suffered from other forms of violence such as torture. Despite being detained, Patekile Namane refused to go to the TRC to testify as he considered the mechanism to be inappropriate for responding to apartheid injustices. During our interview, he explained: I didn’t have confidence in it; I was interested as an intellectual but I wasn’t interested in giving testimony there. I didn’t think that it was the best way of dealing with the healings of apartheid. . . . [T]he best way is to look at the source of the problem, to go back to the land question, to colonialism; that’s the real cause and that is where the solution lies. So on the land question, I would say, how do you return land to the people from those who have made fortune out of blood, sweat and tears of people, how do they take some of the profit and put [it] at the disposal of those that they exploited?13 Insofar that the TRC had eluded questions concerning the apartheid system, the dispossession of land, and the exploitation of South African Black population, Patekile Namane refused to participate in its reparations sessions program. According to him, the TRC’s response was inadequate to the extent that the causes of apartheid conflicts were largely ignored. In the early 2000s, after his refusal to participate in the TRC, Patekile Namane was solicited by two lawyers working with Khulumani to become a plaintiff in one of its litigations. He agreed this time to endorse the role of apartheid victim as some of the issues examined by the trial – denationalization and discrimination policies – and the kinds of reparations demanded of corporations corresponded to what he considered to be the real problems of South Africa. According to Patekile Namane, prosecuting these injustices made it possible to bring a real response to apartheid violence. Justifying his involvement as a plaintiff, he explained: The main claim is based on what we call denationalization, so the creation of Bantustans and the denial of citizenship, so we have to concretize that, by showing that there was a link between being denied your South African citizenship, and specific laws. . . . Well, I do research on that and that is my strength.14 For this university professor, using the Khulumani database and endorsing the apartheid victim status constituted a form of political engagement through which he could put his expertise at the service of a cause in which he believed. Indeed, Patekile Namane considered that as a professor, he could provide information and do research for the lawyers. Thus, unlike other persons claiming apartheid victim status, he not only provided his

160  Liliane Umubyeyi experience in the database, but he also brought his expertise to bear on it since he was equipped with the skills for investigating and finding necessary evidence for the trial. These skills, certified by the fact that he wrote a book on homelands in South Africa, allowed him to participate in the litigation process more actively than other apartheid victims. Patekile Namane’s case illustrates a particular form of diversion of the Khulumani database. Indeed, while this instrument aimed to draw attention to the fact that some South African citizens were denied access to justice, Patekile Namane used it to defend another form of justice, one that fit his own definition of justice by taking into account land redistribution and economic exploitation. Because his area of expertise concerned these issues, he took on the role of apartheid victim plaintiff to challenge the TRC’s framework.

Contesting the TRC apartheid truth through the Khulumani database This range of victim profiles gives a sense of the diverse uses of the Khulumani database by South African citizens looking to challenge the limits of the country’s truth and reconciliation commission. These profiles illustrate various operations through which citizens have reinterpreted the social and political violence they incurred to claim the apartheid victims’ status and the significance of this new status for them. Violent experiences were redefined as specifically “apartheid” violence in response to the shortcomings of other reparations structures and the status they conferred onto victims or, indeed, the lack of status they conferred onto them. Former antiapartheid combatants became apartheid victims as a result of the lack of recognition from liberation movements. Worcester bombing victims became apartheid victims because the South African government and the Shoprite company did not support them. In Patekile Namane’s case, embracing “victimhood status” enabled him to reinforce his chosen scope of action in challenging the state’s response to apartheid injustices. With these snapshots of victim profiles, I do not claim to present the entire configuration of practices of claiming apartheid victim status in South Africa. Rather, these vignettes aimed to shed light on the range of practices by which various individuals have claimed victim status through the Khulumani database. By exploring these different profiles, I do not argue that all the Khulumani members have been brought through this database. Rather, I sustain that the development of this instrument by Khulumani led people who had previously not been recognized as apartheid victims to claim this status because it allowed them to address injustices denied by other social, political, and judicial structures. Thus, the Khulumani database served as a resource helping to circumvent the limitations of the TRC and the government’s lack of support for large segments of South African society after the transition to democracy. Registering in the Khulumani database and becoming an apartheid victim gave these individuals the means for taking

Technologies of truth and access to justice  161 action and opportunities that had previously been unavailable to them when they occupied other statuses, such an unrecognized freedom fighter, victim of bomb attack, and so on, in other words, categories of suffering that were not considered as bases of reparation from the state. The Khulumani database potentially facilitated access to aid from national or international NGOs, experts, and social networks able of providing assistance. This situation where NGO and community organization interventions replace the vacuum left by political and social structures – the state and political organizations – resonates with some Western African contexts such as Togo, described by Charles Piot (2010). This author explains that the absence of the state in certain social spaces gave way to national and international NGOs’ interventions. These actors have proper ways of defining social problems and inventing solutions. They prescribe frameworks of thinking and actions that citizens confronted in the absence of state action to mobilize and benefit from their intervention. In the South African case, becoming an apartheid victim increases the chance to benefit from Khulumani and human rights professionals.

Notes 1 TRC final report, Volume 3, available on http://www.justice.gov.za/trc/report/ execsum.htm (consulted May 17, 2015). 2 Promotion of National Unity and Reconciliation Act, July 19, 1995, available on http://www.justice.gov.za/legislation/acts/1995–1034.pdf (consulted June 3, 2015). 3 TRC final report, Volume 1, available on http://www.justice.gov.za/trc/report/ finalreport/Volume%201.pdf (consulted December 15, 2014). 4 Khulumani report “Building the Future Together: Khulumani Reparations Policy Proposals” submitted to government on the October 29, 2003. 5 Khulumani needs assessment form, Khulumani Western Province office document archives. 6 In this chapter, I use the qualifications used to categorize the South African population in national census, distinguishing black Africans, colored population, whites and Indians, available on http://www.statssa.gov.za/publications/P03014/ P030142011.pdf (consulted on September 20, 2015). 7 Interview with John Manning, Bontheuvel (Western Cape), April 2011. 8 Ibid. 9 Ibid. 10 Interview with Martha Lambert, Worcester, October 2013. 11 Interview with Martin Francis, Worcester, November 2013. 12 Ibid. 13 Interview with Patekile Namane, Cape Town, April 2011. 14 Ibid.

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162  Liliane Umubyeyi Bucaille, L. 2006. “Activistes Palestiniens et Sud-Africains: L’estime de soi, 101.” Politique Africaine 1(1): 149–176. Caple, J.E. 2010. Democratic insecurities: Trauma, violence and intervention in Haiti. Berkeley: University of California Press. Lefranc, S. and Matthieu, L. 2009. “Introduction: De si probables mobilisations de victimes” in S. Lefranc and L. Mathieu (eds.), Mobilisations de victimes. Rennes: Presses Universitaires de Rennes, 11–26. Mamdani, M. 2001. “A diminished truth” in W. James & L. Van der Vijver (eds.), After the TRC: Reflections on Truth and Reconciliation in South Africa. Athens, OH: Ohio University Press, 58–62. Ottaway, M. 1991. “Liberation movements and transition to democracy: The case of the ANC.” The Journal of Modern African Studies 1(1): 61–68. Petryna, A. 2002. Life exposed: Biological citizen after Chernobyl. Princeton, NJ: Princeton University Press. Piot, C. 2010. Nostalgia for the future. West Africa after the Cold War. Chicago: University of Chicago Press. Ross, F. 2003. Bearing witness, women and the TRC in South Africa. London: Pluto Press. Rotberg, R.I. 2000. “Truth commissions and the provision of truth, justice and reconciliation” in R.I Rotberg and D.I. Thompson (eds.), Truth v. justice: The morality of truth commissions. Princeton, NJ: Princeton University Press, 3–21. Roussel, V. 2009. “ Les ‘victimes’: Label ou groupe mobilisé ? Eléments de discussion des effets sociaux de la catégorisation” in S. Lefranc and L. Mathieu (eds.), Mobilisations de victimes. Rennes: Presses Universitaires de Rennes, 101–112. Umubyeyi, L. 2015. “Parler au nom des victimes de l’apartheid, Les enjeux de la représentation professionnalisée dans le procès.” Droit et Société 1(1):73–88.

Index

actor-network theory 4 Adam, A. 122 adversarial system 11 – 14 Afary, J. 29 aggression 99 – 101 Aiello, M. 69 “Aiello trial” 63, 69 – 70, 73 Akrich, M. 4 Alcamo, V. 63 Algeria 84 – 5, 90 – 1 alternative dispute resolution practices 30 Amzazi, M. 112 Anderson, J.N.D. 79 “Andreotti trial” 70 Anscombe, E. 5 Anspach, R. 130, 131, 132, 144 Anzelmo, F.P. 64 apartheid victims 147 – 8, 153 – 5 Arjomand, S.A. 30 Atkinson, P. 132, 137 Austin, J.L. 57 avowals: (ir)relevance in interpretation of criminal evidence 4, 46 – 60; categories of avowals in Syria 49 – 50; in secular European penal systems 47 – 8 Ball, P. 147 Banani, A. 29 Bauman, R. 16 Baxi, P. 22 Bechor, G. 114, 121, 122 Beidelman, T.O. 21 Belhaj, A. 121 Ben Hounet, Y. 4, 7, 28, 78, 79 Bergh, S. 115 Berti, D. 4, 6, 15, 113, 122 Bilmes, J. 21 Black, D. 2

Black-Michaud, J. 2 Bloch, M. 73, 74 blood money practices 78 Boltanski, L. 7, 57, 60 Borsellino, P. 66 Bourdieu, P. 2 Braithwaite, J. 109 Brentano, F. 81 Breton, S. 78 Briggs, C.L. 16 Bucaille, L. 150 Burney, I.A. 133 Buscetta, T. 66 Calderone, A. 66 Callon, M. 4, 5 Campbell, K. 21 “cargo system” 93 – 4 case presentation language 131 – 2 chart talk 130 – 3 Chelhod, J. 79 Chevers, N. 133, 134, 135 children 32 – 6 Cicourel, A.V. 131 circonstances atténuantes 47 Ciuro, G. 69 civil society organizations (CSOs) 115 Collier, J.F. 93, 108 Comaroff, J. 3 conciliation 78, 79 – 80 conflict resolution: as interplay between roles 108 – 10; participation of nonhuman agents in 96 – 9 Contorno, S. 66 Convention on the Rights of the Child (CRC) 32, 35 Cosa Nostra 63, 64 – 5, 66 – 7, 70 – 2 Cotterrell, R. 21 council (jma’a) 115 “courtroom oath” 121

164 Index crime: blood money practices and 79 – 80; categories according to prescribed punishment in Iran 31, 32; concept of 28; consciousness of 70 – 2; definition of 1, 80; and forgiveness among Mixe of Oaxaca 93 – 110; private crimes 31; social anthropology and 2 – 3 crime detection 3 criminal acts 81 criminal conspiracy 67 – 8 criminal intent 5, 37 – 8, 81 – 6 criminal laws 30 – 1 criminal responsibility 32 – 3 criminal spectator 56 – 60 Cucuzza, S. 64 Cuffaro controversy 69 – 70 Cuffaro, S. 69, 70 Cunnison, I. 78 Dalits 22 – 3 Dare‘eh 39 Davidson, D. 5, 6, 65, 68 De Lucia, M. 69 Del Vecchio Good, M.J. 131 Demos, R. 21 description 5 – 6 Dettmeyer, R. 137 deviant behavior 112 – 13 Diamond, A.S. 80 Di Matteo, A. 70 diyat 31, 33 Dodier, N. 138 D’Onofrio, S. 65 Doran, S. 124, 127 Drieskens, B. 79 Dulong, R. 46 Dupret, B. 4, 16, 28, 29, 79, 81 Duranti, A. 79, 81, 82, 105, 113, 125 Durkheim, E. 2, 80 Eftekhari, Judge 36 – 41 Elwert, G. 2 Engelke, M. 113 entextualization 16, 21 Evans-Pritchard, E.E. 80, 81 evidence: avowal as centerpiece of 51 – 60; establishment of as technology of truth finding 113; judiciary practice in India 16; in Mafia crimes 63; producing 5; rules of 3 – 4 Falcone, G. 66 false testimony 134

favoreggiamento aggravato 69 – 70, 72 Favret, J. 55 “Festival of the Key” 101 – 5 Fontain, J. 85 forensic evidence 49 forgiveness 94, 95, 105 – 8 Foriers, P. 15 Foster, S.E. 23 Foucault, M. 47, 48, 55, 60, 131 France, A. 12 Francis, M. 157 – 8 freedom fighters 153 – 5 Gandhi, M.K. 12 Garapon, A. 10, 21, 109 Gellner, E. 121, 125 Ghazzal, Z. 4, 6, 49, 56 Giuffré, A. 69 Gluckman, M. 1, 78, 80 Good, A. 22, 113, 122 Graeber, D. 60 Greenhouse, C.J. 21 Grosso, C.F. 71 Guddu Ram 16 – 21 Gulliver, P.H. 1 Guttadauro, G. 69 Habermas, J. 57 “Habits and Customs” (usos y costumbres) 93 – 4 Hammurabi’s Code 81 Hart, D.M. 118, 121, 122 Hoffman, K.E. 121, 122, 125 Ho, H.L. 10, 21 Hosmanek, A.J. 109 hostile witnesses 14 – 16 Houseman, M. 106 Howell, P. 81 hudud 31, 33 – 4 Humphrey, C. 7, 73, 74 Husserl, E. 81 India: appellate courts 13; elaboration of legal narrative in 16 – 22; ideals of justice in 10, 11 – 14; Indian Evidence Act 133; medico-legal reports in produced in 131 – 2; narrative mode in a medico-legal report 137 – 44; reconstruction and restitution in medico-legal expertise in 130 – 44; sociohistorical approach of scientific objectivity in 133 – 5; trial judges 12 – 14, 15 – 16; trials 11; trial techniques in 10 – 11, 16 – 22; Upper Courts 13 – 14, 15

Index  165 initiation 64 – 5 intentionality: blood money practices and 78; in criminal cases 81 – 6, 89 – 92; criminal intent 5, 37 – 8, 81 – 6; definition of 80 – 1; discourses on 83 – 5; Mafia crimes and 64 – 5; mental disorder and 82, 85, 90 – 1; murder and partial reconciliation 90 – 1; power relations 83, 86; reconciliation and 82 – 3, 91 – 2; social and linguistic framework and contexts 82 – 3 interpretation 5 – 6, 46 intimidation 67 – 8 Iran: codifying/modifying criminal laws 30 – 1; codifying shari‘a 29 – 30; historical context 29 – 30; human rights violations 32; judge’s knowledge and juvenile “maturity” 29, 32 – 6; judge’s knowledge as form of proof 29, 31 – 2; judicial decision-making in 28 – 43; justice system reforms 30; legal system 36; minority opinion 36 – 42 Islamic Civil Code, Article 1210 37 – 8, 39, 41 Islamic Penalty Law: Article 49 37 – 8; Article 88 33; Article 91 34 – 5; Article 120 39; Article 146 32; Article 147 32 – 3; Article 148 32; Article 1210 39 Italian Penal Code: Article 41 66; Article 378 69; Article 416 bis 67 Iyer, K. 11 – 12 Jackson, J. 124, 127 James, E. C. 148 Jaoul, N. 22 – 3 Johnston, S. 113, 122 joint responsibility 66 – 7 judge’s knowledge: ambivalence to power and 42 – 3; as form of proof 31 – 2; juvenile “maturity” and 29, 32 – 6,  43 judicial truth 11 – 12 justice 10 Just, P. 11, 21, 83, 125 Kane, S. 2 Kaushlya Devi 16 – 21 Khomeini, R., Grand Ayatollah 30 Khulumani database: challenging apartheid truth through trials 158 – 60; contesting TRC apartheid truth through 160 – 1; development

of 148 – 50; as space for reconfiguring political identity 153 – 5; use to contest apartheid truth 149 – 53 Khulumani Support Group 7, 147 Kleinman, A. 131 Knight, B. 137 Kolsky, E. 15, 133 Komter, M. 6, 72 Kraus, W. 124 Kuipers, J. 113 Lafrouji, M. 119 Laidlaw, J. 7, 73, 74 Lal, V. 15 Lambert, M. 156 – 7, 158 Landowski, E. 10, 15 Langbein, J.H. 14 Latour, B. 4, 93 Leclerc, G. 21 Lefranc, S. 148 Lodato, S. 67 Lowie, R.H. 78 Lyon, I.B. 133, 134, 136 Mafia crimes: consciousness of crime 70 – 2; crime of participation in a Mafia-type organization 63, 70; criminal action as form of social action 72 – 4; Cuffaro controversy 69 – 70; decision-making in Cosa Nostra 66 – 7; “external complicity” 63, 69 – 71; intentionality and 64 – 5; Mafia organization behaviors and 67 – 8; proof of 67 – 9 Maine, H. S. 2 Makarem Shirazi, N., Grand Ayatollah 40 Malinowski, B. 2, 80 Mamdani, M. 149 Manning, J. 153 – 5, 158 Mannoia, F.M. 66 Marcy, G. 125 Martínez, J.C. 93 matricide 51 – 6 Matthieu, L. 148 Mattingly, C. 131 maturity 29, 32 – 6, 38 – 41, 43 Mauss, M. 81 Maxi Trial 66 mediation 105 – 8 medical anthropology 130 – 3 medico-legal reports: characteristic features of 131 – 2; fading of narrative mode in 135 – 7; traces of narrative mode in 137 – 44

166 Index mental disorder 82, 85, 90 – 1 Merry, S.E. 1 Midha, J.R. 12 minority opinion 36 – 42, 43 Mixe: conflict resolution as interplay between roles 108 – 10; “Festival of the Key” 101 – 5; forgiveness 94, 95 – 6, 105 – 8; law of “Habits and Customs” 93 – 4; learning to use force against aggression 99 – 101; mediation and forgiveness 105 – 8; “The One Who Makes Live” 93 – 4, 101 – 5, 106, 108; participation of nonhuman agents in conflict resolution 96 – 9; punishment 96; sacrificial rituals 93 – 4; wrongdoing 94 – 6 Modi, J.P. 132, 135, 136 Moore, S.F. 1, 78 Morocco: council 115; dealing with deviance in 112 – 13; disputed access to natural resources 118 – 21; local institutions and state-local interfaces 115; oath taking as witness testimony in plural legal configurations in 112 – 27; people’s judge 112 – 14, 116 – 18, 126 – 7; tagallit practices 121 – 7; technologies of truth finding mixed up in local context 121 – 6; village justice and its legal environment 114 – 15; village justice and local order in 114 – 18 Muhammad, Prophet of Islam 79 murder 65, 90 – 1

Paci, G. 69, 70 Papua New Guinea 109 Parnell, P. 2 Parnell, P.C. 113 partial reconciliation 82, 90 – 1 Peirce, L. 21 pentiti 63, 65, 66, 67 people’s judge 126 – 7 people’s judge (hakim) 112 – 14, 116 – 18 Peristiany, J.G. 2 perjury 124 personhood 81, 86 Peter, J.P. 55 Peters, R. 32, 80, 81, 123, 125 Petryna, A. 148 Pillay, V.V. 135 Piot, C. 161 Pippin, R. 59 Pirie, F. 79 Pitrou, P. 4, 66, 67, 93, 94, 102, 106, 109 poultry sacrifices 93 power relations 83, 86 pradhan 17 Prestipino, M. 69 Prior, L. 131 private crimes 31 procedural truth 11 Prodi, P. 121 proof 29, 31 – 2, 63, 67 – 9 Provenzano, B. 74 Provost, F. 4, 6 Puccio-Den, D. 5, 7, 28, 66, 67 punishment 31, 32, 96

Nader, L. 108 Namane, P. 158 – 60 natural resources 118 – 21 Netherlands 6, 72 nonhuman agency 96 – 101, 109 Nuri-Hamedani, H., Grand Ayatollah 40

qazi 41 qisas 31, 33 – 4 Quine, W. 5

oaths: collective oath 121; “courtroom oath” 121; “oath of denial” 124; religious component of Islamic testifying 122; state law 122 – 3; tagallit practices 121 – 7; types 121 – 6 omertà 67 – 8 oral depositions 135 – 7 oral evidence 16 Osanloo, A. 6, 29, 31 Ottaway, M. 150 out-of-court settlements 22 – 3

reconciliation 82 – 3, 91 – 2 Reddy, N.K. 132, 136 religion 65 responsibility 66 – 7, 81 Riolo, G. 69 “ritual commitment” 73 – 4 “ritual condensation” 106 Rivière, P. 55 Robbins, J. 81 Rognoni-La-Torre Act 67, 71 Rosen, L. 42, 115, 116, 117, 121, 122, 124, 126 Ross, F. 149 Rotberg, R.I. 147 Roussel, V. 148 Ruby, C. 57

Index  167 Sahlins, M. 86 Sari Basha, A-Q. 53 Sari Basha, M.J. 52 Sari Basha, Y.53 Saukko, P. 137 Scarpinato, R. 67 Schapera, I. 1, 2, 28, 80, 86 Scheffer, T. 19 Schlee, G. 78, 79 Schneider, J. 3, 113 Schneider, P. 3, 113 Schütz, H.F. 137 Searle, J. 81 semi-intentionality 82 – 3 Severi, C. 106 Shack, W.A. 121 shari‘a: codification of 28; minority opinion and 41 – 3 Shawwa, F. 51 – 7, 60 Shawwa, M.A. 52 – 4 Sicilian Mafia 63, 64 – 5 Sierra, M.T. 93 Smith, P. 74 South Africa: apartheid victims 147 – 8, 153 – 5; challenging apartheid truth through trials 158 – 60; contesting TRC apartheid truth 160 – 1; crime detection 3; development of Khulumani database 148 – 50; freedom fighters 153 – 5; Khulumani Support Group 7, 147; Truth and Reconciliation Commission 7, 147, 149 – 50, 158 – 61; truth at time of transition to democracy in 149 – 50; Worcester victims and their claim for justice 155 – 8 Spirer, H.F. 147 Spirer, L. 147 stare decisis 36 Stengers, I. 93 Stiles, E.E. 21 Strath, M. 109 subordination 67 – 8, 74 Sudan 82 – 4, 86, 89 – 90, 91 – 2 suffering 95 Summers, R.S. 10 Syrian penal system: case of woman accused of matricide 51 – 6; categories of avowals 49 – 50; emergence of criminal spectator

56 – 60; problems of judges to deliver verdicts 47; violence of mute woman and power of speech 54 – 6 tagallit practices 121 – 7 Tarabout, G. 4, 6, 113, 122 Tavuchis, N. 105 ta‘zir 31, 33 – 4 “The One Who Makes Live” 93 – 4, 101 – 5, 106, 108 tort theory 31 translation 4 – 5 trial judges 12 – 14, 15 trials 11, 16 – 22 “tribal law” 80 truth: adversarial system and 14 – 16; challenging apartheid truth through trials 158 – 60; idealist discourse on 13 – 14; judicial truth 11 – 12, 15 – 16; procedural truth 11; scientific objectivity and 133 – 5; technologies of truth finding mixed up in local context 121 – 6; use of Khulumani database of contest apartheid truth 149 – 53, 160 – 1; as value 11 – 14 Truth and Reconciliation Commission 7, 147, 149 – 50, 158 – 61 Turner, B. 7, 114, 115, 118, 119, 121 Turner, V. 109 Turone, G. 67, 68 Twining, W. 127 Umubyeyi, L. 7, 147 ’Utrī, M. 46 Verhoff, M.A. 137 Vivekananda, Swami 12 Weber, M. 42 Wolff, F. 11 Worcester bombings 149, 155 – 8 “Worcester Hope and Reconciliation Process” (WHRP) 156 – 8 written reports 136 – 7 wrongdoing 94 – 6 Zion, J.W. 109 Zola, E. 12 Zubaida, S. 42