|“The Person in an Egyptian judicial Context: An Ethnomethodological Analysis of Courtroom Proceedings”, International Journal for the Semiotics of Law / Revue Internationale de Sémiotique Juridique, 2003, pp. 15-44.
The Person in an Egyptian judicial Context
An Ethnomethodological Analysis of Courtroom Proceedings
CNRS, France / CEDEJ, Egypt
In this contribution, I am interested in the notion of the person and the way it is formulated in and practiced in what is called “law in action”.*1 The notion of the legal person is closely associated with the concept of legal capacity and its opposite, incapacity. The article analyzes the legal and judicial uses of the category of the person as a natural artifact, This will lead to consider the normative and moral character of what is presented by law as coming from the objective nature of facts. I shall scrutinize those mechanisms of “naturalizing the normative” and “normalizing the natural”. Both mechanisms sustain the institutional reality of law and contribute to its transformation.
A category like the person, which is historically contingent, is at the same time necessarily shaped by the context of its mobilization. It is on this constraining effect of the context that this article will focus. After some general considerations regarding the praxiological approach to law which is followed, it concentrates on legal practices related to these categories as they emerge from actual legal interactions in judicial contexts. First, I shall make some developments on the notions of norm and normality, arguing that it is through these notions that the category of the person takes its local and contextual meaning. Second, I shall examine this notion of context, institutional in particular. Turning to a case in which a person is accused of having intentionally killed a woman, though he claims to have been possessed by spirits, I shall document the influence of the legal setting in the production of meaningful categories like the person.
1.1. A praxiological approach to law
This essay has a strong ethnomethodological inspiration. This cannot be interpreted as a call for the adoption of an alternative sociological theory or methodology. With regard to the former, on the contrary, ethnomethodology seeks to substitute to the building of grand model theories the close investigation of actual data reflecting the ways (methods) in which people (the members of any social group) make sense of, orient to, and practice their daily world. With regard to the latter, ethnomethodology’s indifference policy “turns away from the foundationalist approach to methodology that gives rise to principled discussions of validity, reliability, rules of evidence, and decision criteria.”2 Following Stephen Hester and Peter Eglin, we can identify four principles that characterize ethnomethodology.3 First, the focus on members’ methods: ethnomethodological research is particularly attentive to the “the production and recognition apparatus”4 of action, i.e. the means used to produce an action in a way that allows it to be understood by others. Second, the injunction to “treat social facts as interactional accomplishments.”5 Social facts, in this sense, are not givens but ongoing social productions of people engaged in courses of mutually constituted actions within mutually constituted self-organizing settings. Third, rather than predefining social phenomena or employing people’s meanings as resources for explanation, ethnomethodology seeks to describe what participants in particular settings are oriented to and how these features enter into their perceptions, actions and accounts. Members’ ‘meanings’ become topics of inquiry in their own right rather than resources for mapping out sociological relevance. Four, people, i.e. social actors, are rule-using, not rule-determined creatures. It means that, in the course of their actions, they eventually orient to bodies of rules. However, their actions cannot be depicted as rule-governed. As a whole, ethnomethodologically-inspired praxiological studies involve a radically non-mentalist approach, where, by non-mentalist, it is meant that processes related to mind, thought, emotions and the like cannot be reduced to mere neuronal firings nor relegated to any inaccessible inner self, but must be radically “sociologized.”6. If methodology is about rigor, the rigor of ethnomethodological analysis has to be found in its capacity to reproduce the features of the phenomena it observes and not in its assuming about these phenomena anything that would specify in advance of investigating them.7
From the inception of ethnomethodology and conversation analysis, law and courtrooms were considered a privileged standpoint from which it is possible to observe language and action in context. The goal is not to identify how far legal practices deviate from an ideal model or a formal rule but to describe the modalities of production and reproduction, the intelligibility and the understanding, the structuring and the public character of law and of the many legal activities. Instead of assuming the existence of racial, sexual, psychological or social variables, ethnomethodological and conversational research focus on how activities organize themselves and on how people orient themselves to these activity structures, which they read in a largely unproblematic way. As Alain Coulon points it out, the sociological hypothesis of norms interiorization, from which “automatic” and “unthought” behaviors follow, does not give any account of “the way actors perceive and [understand] the world, recognizing what is familiar and constructing what is acceptable, neither does it explain how rules concretely govern interactions.”8 From this point of view, law is neither the law of abstract rules nor the law of principles independent from the context of their utilization, but the law of people involved in the daily practice of law, i.e. the law made of the practice of legal rules and of their interpretive principles. Hence, our attention is directed to “such matters as: (1) the methods by which particular legal actions such as legislating, accusing, complaining, identifying ‘suspicious’ persons, arresting, plea negotiating, (cross-)examining, judging, sentencing and appealing are produced and recognized; (2) the methods by which legal settings and situations such as a call to the police, police interrogations and courts and trials are socially organized; (3) the methods by which legal and criminal identities such as lawyer, client, police, suspect, judge and defendant are achieved in social interaction.”9
Many ethnomethodological or conversationalist works study law and legal practice.10 One of their main themes is what John Heritage calls the morality of cognition,11 i.e. the incongruity procedure by which social actors decide whether a situation should be considered normal or abnormal. In his study of the Kennedy Smith rape trial, Gregory Matoesian shows how “through a myriad of linguistic and sequential resources, the defense attorney creates a turn-by-turn disjunction between category bound activities/states and the rapist category, drawing attention to the abnormality of rapists, the normality of his client, and the irrationality of the witness’s actions if he were a rapist (or the rationality of her actions with a nonrapist).”12 In a similar way, Harvey Sacks’s “Notes on Police Assessment of Moral Character” of alleged offenders shows how the work by which facts, objects and people are assessed is done from the perspective of typified and routinized situations.13 In his paper on “normal crimes”, David Sudnow demonstrates how this normality is made of the typified characteristics that are ascribed to these situations and that are expected from them.14
The attention which ethnomethodology and conversation analysis draws to situated practices sheds light on the mainly routinized nature of the formalizing work which law professionals accomplish. The work of attorneys, magistrates, and prosecutors consists mainly of the formalization of categories which are used in the clients’, offenders’ and witnesses’ telling of the facts. Conversely, the work of the non-professional parties in a trial often consists in avoiding the blame-implicative inferences which results from the legal characterization of facts. As evidenced by Rod Watson, the categorizing processes that mark out the path leading to a court decision are as many means for the concerned people to give their act a motivation and, by doing so, to allocate and to negotiate accusation, culpability, motivation, responsibility and, therefore, grounds for excuse and justification.15
Methodologically, it must be noted that this article relies upon various written records, mainly the written transcription of public prosecutors’ and judges’ examinations of offenders, victims, witnesses, and experts in different criminal cases. The reason for the recourse to written documents is simply that I had no access to tape-recordings of court and prosecution hearings and was not granted permission to tape-record them myself. This reliance upon written material and not tape-recordings might be considered an apparent shortcoming of the data in which this analysis is grounded. It also explains why I do not follow the transcript symbols devised by Gail Jefferson16 However, following J. Maxwell Atkinson and Paul Drew,17 I defend the way I use these transcripts, even though I would have preferred to get access to tapes. First, I “have sought for the most part to avoid investigating things which cannot be read from the (…) transcripts”. Second, I contend that “some understandings can be arrived at perfectly well from official and other ‘cleaned up’ transcripts from which such details [intonational variation, the serial placement and length of pauses within and between turns, overlaps, etc.] are excluded.” Third, if the practice of transcription exists, “it is presumably based on the assumption that they are adequate for lawyers and others to understand for the practical purposes of submitting or deciding appeals”. It means that, at least, these transcripts are considered reliable by professionals engaged in legal practice. There is no reason to consider that the analyst cannot rely upon data that are accepted as appropriate by practicing lawyers: “Providing the analyst confines his attention to understandings which can be arrived at from whatever data he has before him, however, there is still much that he can do even without access to other interactional features”. Fourth, there remains an additional problem when data are not only transcribed from oral hearings but also translated from foreign language. Mutatis mutandis, the remarks formulated by Atkinson and Drew with regard to the capacity of English native speakers of English to understand and analyze courtroom exchanges between Americans hold true when turning to more alien languages and contexts. Namely, it means that it is analytically proper to proceed so long as the investigations are limited to readings of Egyptian Arabic data which can be arrived at by me as a competent but non native speaker of Egyptian Arabic. However, I am fully aware that the English translations of original Egyptian Arabic written records constitute a real problem to which I see no solution other than, first, acknowledging the difficulty, second, stressing the fact that these records are written transcriptions already partly cleaned-up by the courts’ clerks from the original Egyptian colloquial, and, third, emphasizing our capacity to do much with such material. In sum, although I am very much aware of the transformations that happen during this transcription process and make oral statements and interrogations written records—in other words, I deal with statements that have already been partly re-shaped by the prosecution for all practical legal purposes—I can also, from my own personal experience, testify to the fact that public prosecutors do not totally re-phrase parties’ utterances. Actually, the record is a mix of original and partly re-phrased utterances through which a good deal of actual interactions perspires.18
2. The category of the person
In this section, I shall focus on the notion of the person as manifested in its legal treatment. Using examples taken from Egyptian criminal law, I shall stress the idea that this category is both normative and contextual. The person, in the specific context of Egyptian legal practice, does not correspond to something whose characters can a priori be identified. It is a type or a category and it normatively functions as such.
Usually, people are taken to assume that “events have ‘normal patterns’ and ‘usual causes’ of occurrence that can be relied upon.”19 As Schütz puts it, they hold their knowledge in a typified form, in a taken-for-granted basis, and these social constructs are valuable as a resource for navigating the social world because “the pattern of typified constructs is frequently institutionalized as a standard of behavior, warranted by traditional and habitual mores and sometimes by specific means of so-called social control, such as the legal order.”20 This typified form in which people hold their knowledge is a very indeterminate and indistinct one which very often receives its clarification progressively during the actual temporal course of action. Nonetheless, people firstly display their perception of the normality of events. In a situation of incongruity, they look for explanations for this threat to normality. In other words, people are (made) morally accountable for any breach in what is the perceived normal course of events. This means that any departure from the ‘normal’ is assumed to be motivated or at least explainable. One should note that the whole process is dynamic: people refer to an underlying pattern of the normal course of events, and this underlying pattern is itself defined and transformed by actors’ actions.
Legal categories do not escape the scheme of naturalness and normality . In other words, the idea of the normal person constitutes the point of reference of practical legal reasoning. As such, the person, far from being an abstract and a non-accessible category, is made public through the culturally methodic deployment of public resources, i.e. linguistic resources, in social interaction.21 As Douglas Maynard puts it, in his study of plea bargaining, “when persons are talked about in any conversation, descriptions are selected and produced according to what activity is being done (…) Who a person officially is, for others, depends on what activity is being accomplished in their talk.”22 The person is constituted in the public domain and is a thoroughly public phenomenon. The realization of the category of the person is, in such a perspective, oriented and constrained by the scheme of the natural and normal person, as in Garfinkel’s seminal study of the case of Agnes, in which sexual identity is conceived as being a produced and managed feature of ordinary social interactions and institutional workings.23 It works “as an invariant but unnoticed background in the texture of relevancies that comprise the changing actual scenes of everyday life.”24 This background is constantly mobilized, though it remains largely unexplained or loosely defined. Hence, being defined as a person largely depends on people’s capacity to present normal appearances and to expect people to treat them on such grounds. As Sacks puts it, “persons using public places are concurrently expected by others to present appearances which can be readily so used, and expect others to treat their own appearances at face value.”25 Among the methods that are mobilized, one must point to the incongruity procedure, which treats in parallel the expected behavior and the perceived behavior, so as to infer from their congruence or from their divergence the nature of the person whose character is assessed. In other words, there is no natural person as such, but only naturalized persons, and this category is normative because people are confronted with the naturalized, normalized person so as to assess his/her conformity to the type, with all the rights and duties that are attached to membership to this type (this is what conversation analysts call ‘membership categorization device’).26
We shall give some examples of such production of the normal person in the Egyptian legal context. These examples are taken from the written records by which public prosecution transcribes the statements of different parties in a trial. The following is the account of a girl who allegedly was the victim of an attempted rape, subsequently characterized by the public prosecution as an indecent assault (hitk ‘ird).
Question: What did happen
Answer: I was in the street this day … when I met these two … and they told me come along with us and they made me take a cab … and they went to the rear of the War Factory
Q: What was their purpose in so doing
A: They told me don’t worry we go drink a tea together
Q: Why didn’t you ask for help when they caught you …
A: I tried to cry out and to convulse on the floor but the street was empty
Q: What’s the number of the cab in which they took you
A: I don’t know it was going in the street
Q: Why didn’t you ask the cab driver for help
A: The driver was afraid of them and he did what they asked him to do
Q: What was the purpose of them taking you along
A: I think that they wanted to assault my honor otherwise they wouldn’t have taken me to that place
Q: Did you know them from before
Q: Do you have anything else to say
(Case No 5471 of 1977, Mahram Bey, Alexandria)
What this short account reveals about the person (the victim) is quite rich, notwithstanding the trivial nature of the exchange. First, the prosecutor aims at providing an account which gives mutual intelligibility of the actions of each party in the form of wh-questions (“what did happen”, “what was their purpose”, “why didn’t you ask…”, etc.) Second, it points to a typical conception of the distribution of roles between genders: women walk in the streets (“I was in the street”), completing their daily business, while men assume the entire responsibility in engaging in any kind of relationship (“when I met these two and they told me”). Third, in cases of illegitimate sexual intercourse, women are presumed to bear some responsibility for what happened to them and not to have done what they should have (“Why didn’t you ask for help?”). In other words, they bear the burden of proof and have to justify themselves by showing they made an effort (“I tried to cry out and to convulse on the floor but the street was empty”) in repairing the damageable consequences of this assumption. Fourth, action is presented as motivated. In this case, fear and confidence are combined in a way that gives motives both to the girl’s acceptance of her going along with them (Q: “What was their purpose in so doing?” A: “They told me don’t worry we go drink a tea together”) and to her not resisting getting into the cab (“they made me take a cab”). However, fifth, there is a kind of ambiguity surrounding her accepting an invitation, on the one hand, and her being commanded and threatened, on the other. Realizing that accepting an invitation might be detrimental to her credibility as a victim, she might have tried a kind of repair by shifting from mere communication (“they told me”) and invitation (“we go drink a tea together”) to force and compulsion (“they made me take a cab”). Sixth, her answer to the question concerning her not asking for help seems very odd (“I tried to cry out and to convulse on the floor but the street was empty”). Following the former shift from communication and invitation to force and compulsion, it rather seems to confirm that the victim refrained from crying, either because it was useless or because she actually did not object to her accompanying them. Realizing that her apparent passivity could be very detrimental to her case, the victim seems to change her narrative so as to emphasize her active resistance. Finally, the prosecutor is always looking for individual action (“Why didn’t you ask for help when they caught you …?”), motivated action (“Why didn’t you ask the cab driver for help?”), and purpose or intention (“What’s the purpose of them taking you along?”). The latter point must be emphasized, for it reveals how the way in which the prosecutor conducts the interview is organized for practical purposes, i.e. anticipating the steps through which the case must go, around the legally relevant questions of “who did what with which intention.”27
Twice, the victim uses direct quotes in her answers to the prosecutor’s questions (“They told me come along with us”; “They told me don’t worry we go drink a tea together”). The use of direct speech is a central device in talk activities. As Matoesian and Coldren put it, “Direct quotes are a type of reported speech which minimizes the gap in the decontextualization and recontextualization of prior talk. They make the words being spoken here and now appear as an exact replica of the words spoken in historical context. They make the performed words appear close to previous words and, in so doing, make those historical words come alive—giving them an aura of objectivity and authority. In this way, direct quotes provide a rigid boundary between the quoting and quoted voices which maintains the historical authenticity and integrity of the reported speech, as the reporting speaker purports to represent the reported speaker’s exact words.”28 Foregrounding the voice of one of her aggressors, the victim’s narrative appears much more reliable, while her own voice is at the same time backgrounded. The authenticity of her statement becomes hard to challenge and the whole drama much more lively. However, it has detrimental implications. If it is credible that she was invited by these two guys, it is also credible that she consented to her flirting with them. This is not something young women are supposed to do. Consequently, her narrative, although it takes the form of direct quotes, is damageable to her morality. It creates a disjuncture between the legal characterization of the facts and the way in which they are reported.
The role played by the institutional function of one of the parties (offender, victim, witness) in his/her talk and in the general construction of the narrative clearly emerges from the following excerpt of the interview of one policeman in the same case:
Q: What information do you have
A: Today, when patrolling with my colleague policeman Ahmad Hasan al-Shannawi in the first zone of the police station of Mahram Bey in which ‘Izbat Nadi al-Sayd is located when patrolling at the rear of the War Factory I and my colleague heard the sound of a woman who said help this sound was coming from the rear of the War Factory my colleague and I started searching for the origin of the sound and we witnessed a girl and two boys holding her they attempted to escape but I and my colleague hurried to catch them and to make inquiries about the girl and it came out that she was called Magda al-Sayyid Muhammad Qasim she reported to us that these two boys met her at the Prison of Alexandria and brought her by force in a taxi to this place and attempted to assault her
(Case No 5471 of 1977, Mahram Bey, Alexandria)
The categorization of events and people appear in a very detailed manner which is organized so as to be useful for all subsequent legal purposes: day, actors, place, circumstances, action, accounts. Moreover, we should note that this account provides for the professional character of its authors.29 As noted by Sacks, one basis for this professional status seems to be the concern of the police to develop means for establishing their job “as business-like, i.e. impersonal, code-governed, etc.”30 Both the actors’ actions and their accountings are institutionally organized with reference to some accounting framework.31 This has consequences for the definition of the person whose circumstances are presented so as to fit the requirements of a proper accomplishment of legal characterization. “Here, the categories of the criminal law (…) are seen as constituting the basic conceptual equipment with which such people as judges, lawyers, policemen, and probation workers organize their everyday activities.”32
The two former accounts should be contrasted with the accounts given by the two alleged offenders. As for ‘Abd al-Hafiz Ahmad:
Q: What do you say with regard to what relates to you
A: It didn’t happen I was walking on the Mahram Bey bridge and I met the boy Mahmud Basyuni walking on the bridge and this girl with him he asked me don’t you know a place where to take this girl and I told him I don’t know I’m on my way to give to someone at the War Factory he told me take me along my foot is hurting I hailed a cab and he and the girl got in with me she was crying and when the cabdriver heard the girl crying he started to take her out of the cab at a station for used oils I headed for the (place) of the thing which stays at the rear of the War Factory and Mahmud Basyuni and the girl afterward I suddenly realized that the policemen had caught me
Q: Where and when did it happen
A: Today around 3 more or less on the Mahram Bey bridge Mahmud Basyuni met me and the woman who was with him
Q: Did you know one of them from before
A: I knew Mahmud Basyuni because he lives on our street but the girl I don’t know her
Q: What was the situation you witnessed the aforementioned Mahmud Basyuni and the girl
A: The girl was walking along with Mahmud Basyuni and her hand was in his hand and she cried
Q: Didn’t you ask why she was crying
Q: What did the aforementioned Mahmud Basyuni report to you when you met her
A: He told me Have you a place where we can take the girl and I told him I don’t know this
Q: What have you to say concerning what the two policemen and the victim reported
A: What they told it didn’t happen God is with us
Q: What’s the reason of the arrest by the two policemen
A: I don’t know I was walking like that and going to fetch some tip
Q: The victim reported that the taxi driver refused to drive you and started to push you out of the car at the Matches Company on the Suez road when he saw that she was asking for help
A: He met the girl crying and came to push her out
(Case No 5471 of 1977, Mahram Bey, Alexandria)
As for Mahmud Basyuni Muhammad:
Q: What do you say with regard to what relates to you
A: It didn’t happen
Q: What’s your explanation of the statement by the two policemen in plain clothes
A: I don’t know what happened is that I was coming back from a journey today and this girl met me and I knew her from before we walked together and we talked and we met ‘Abd al-Hafiz Ahmad in Yasir b. ‘Amir street and he walked with us afterward ‘Abd al-Hafiz said that he was going to fetch some tip from someone at the War Factory I and the girl went with him and afterward the policemen caught us while we were walking like that
Q: Where did you meet the victim
A: In Suez Canal street at the Industrial Gas Company she and I were walking to Yasir b. ‘Amir street and afterward we met ‘Abd al-Hafiz
Q: How did you arrive at the rear of the War Factory
A: We walked
Q: What do you say with regard to what the victim reported
A: It didn’t happen the policemen are the ones who persuaded her
Q: What do you say with regard to what the aforementioned ‘Abd al-Hafiz Ahmad reported
A: Nothing of what he said happened
Q: Why does he claim that against you
A: I don’t know
(Case No 5471 of 1977, Mahram Bey, Alexandria)
In both accounts, the alleged offender attempts to present himself as a normal person, i.e. as a man who behaves in such a way that does appear incongruous to others. To be considered normal, people exhibit and display what seems to be, according to them, a normal behavior. Hence, the repetitive claim of ‘Abd al-Hafiz to be “on my way to fetch some tip from someone at the War Factory”. Hence again, Basyuni’s presentation of a quite normal way to spend one’s time (“I was coming back from a journey today and this girl met me and I knew her from before; we walked together and we talked and we met ‘Abd al-Hafiz”). The presentation of oneself as a normal person is reinforced by the description of a banal sequence of events in a familiar environment: “(I met the victim) in Suez Canal street, at the Industrial Gas Company, and she and I were walking to Yasir b. ‘Amir street, and afterward we met ‘Abd al-Hafiz”. Conversely, it is by the damaging of this self-presentation that people’s behavior is presented as abnormal, for which they can be taken as personally (and eventually criminally) responsible or accountable. This explains why the prosecutor asked ‘Abd al-Hafiz: “Didn’t you ask why she was crying?”. Indeed, there is a discrepancy between the presentation of his behavior as normal and the abnormal character of meeting a girl who is crying. In the case of Basyuni, the discrepancy between his account and the others' makes it abnormal, and he tries to repair it by providing an alternative account of the events (“Q: What do you say with regard to what the victim reported? A: It didn’t happen, the policemen are those who persuaded her”), though he fails to provide acceptable reasons for these discrepant accounts, as evidenced by his repetitive answers (“It didn’t happen”; “I don’t know”).
Returning to mentally deficient people, several conclusions can be drawn regarding the concept of the person from the following excerpts of a case which is related to an alleged attempt at indecently assaulting a mentally backward boy.
Prosecution of al-Sahil
Considering that (…) informed [the police officer] that the aforementioned Ayyub … tried to assault sexually the aforementioned Ayman …, who is mentally backward (mutakhallif ‘aqliyyan) and lives in the same building. (…) On today's date, with the opportunity of the presence of the accused outside the room of investigation, we asked him to enter it and we asked him verbally about the accusation directed against him, after having informed him of it, of its punishment, and of the responsibility of Public Prosecution in conducting an investigation with him. He denied them and we asked him whether he had an advocate representing him in the investigation proceedings ??? and he answered negatively. Then, we proceeded to hear the testimony of the police sergeant … and we put him to the side, inside the investigation room. We asked for the aforementioned Ayman …, the victim, inside the investigation room. He was introduced to us, with his mother Rasmiyya … accompanying him. We asked her to stay outside the investigation room and we kept the victim with us. He appeared to us like an adolescent (sibî yâfi‘) exhibiting the signs of mental backwardness (al-takhalluf al-‘aqlî). We asked him about what happened and we could not understand anything, except that he pointed with his middle finger and pronounced the sound ‘s’ (sîn), he pointed with his finger to his neck, i.e. he had a knife on his throat. We asked him another time about what happened and he pointed to the accused inside the investigation room and then he pointed to his rear and he pointed to him another time with his middle finger and pronounced the sound ‘s’ another time, and we found difficulties in understanding the rest of his answer.
(Case No 7158 of 1993, Sahil, Cairo)
First, the victim is never characterized by the technical legal terms, ‘insanity’ (junûn) or ‘mental disorder’ (‘âha ‘aqliyya). These terms are devised so as to characterize the liability of the offender, not the person of the victim’s. The only circumstances that aggravate the punishment for sexual assault are the use of force (Penal Code, Art. 268) and the minority of the victim (Penal Code, Art. 269), which is defined here as eighteen years of age. Hence, the mental backwardness of the victim should not play any role in this case, though his age and the use of constraint are very much relevant. However, the victim’s mental backwardness (takhalluf ‘aqlî) is systematically mentioned by the parties and by the prosecutor. The following is an excerpt of the interview with the victim’s mother:
Then, we asked his mother to enter the investigation room another time and we asked her the question as follows. She answered:
A: My name is Rasmiyya Muhammad Nubhan (…)
- oath -
Q: What information do you have
A: What happened is that I was sitting in my flat on the third floor and my son Ayman went out to go to the workshop he is working in at 10:00 in the morning a few minutes after he left a girl whose name is Wazza Muhammad ‘Abd al-Razzaq and whose actual name is Umm Hashim who lives with us in the house came and said help me auntie Umm ‘Aziza it’s Magdi he made Ayman enter in the room and he locked the door I feared and I said ??? I went down immediately to Magdi’s room which is under the stairs I found the door closed then I broke the door and I entered I found Magdi tearing away my son Ayman’s clothes and bunching up the gown he wore lying down on my son I screamed and Magdi stood up from Ayman the neighbors gathered when the heard my voice and he began to insult the neighbors and he went to inform the police when the police came to know about it I went to the police station afterward he denied this is what happened
Q: What’s your relationship with the victim
A: He’s my son
Q: What’s his age approximately (tahdîdan)
A: He’s 17 or 18, and he has been mentally backward since his birth onward
Q: From the facts you witnessed was your son submissive to the assault or was he resisting
A: My son is mentally backward and he doesn’t know anything and he stood silent
(Case No 7158 of 1993, Sahil, Cairo)
The implications of the characterization of the victim as mentally backward clearly emerge from this excerpt. Firstly, the characterization is directly associated with his age (“He’s 17 or 18, and he has been mentally backward since his birth onward”). Second, the characterization is invoked so as to assess his consent to the alleged sexual relations (“My son is mentally backward and he doesn’t know anything and he stood silent”). In other words, being mentally backward allows for a presumption of the absence of consent.
All these consequences are more evident when we contrast the former excerpt with the following, which is from the offender’s interview:
Q: How long have you known the victim
A: I have known him since the first time I lived in the house in 1978
Q: At first glance is he an understanding person (shakhs mudrik)
A: He speaks in a jerky way
Q: Is he mentally backward
A: I don’t know
Q: You have seen the victim since 1978 and you don’t know whether he’s mentally backward or not despite the fact that it is obvious that he’s mentally backward
A: I don’t know
(Case No 7158 of 1993, Sahil, Cairo)
This excerpt can be considered at different levels. First, we note that the prosecutor uses another term for characterizing the state of the victim (“At first glance, is he an understanding person?”). Then, we can observe the manner in which the offender avoids using damaging characterizations. On the one hand, he engages in rhetorical understatement or euphemism (“He speaks in a jerky way”). On the other hand, he refuses to adopt the characterization provided by the prosecutor (“Q: Is he mentally backward? A: I don’t know”). Finally, the prosecutor’s last question raises many fundamental points and gives us very interesting clues about the understanding of the role of background assumptions, consequential inferences, and institutional settings in the construction of the category of the person in Egyptian law.
All these excerpts and, in particular, the last one demonstrate that participants in legal interactions share a background understanding of the nature of legal inquiries, so that they know it is often not in the interests of a defendant to co-operate beyond a minimum level.33 This is what Komter calls the dilemmas of conflict and cooperation: “the dilemma of the suspects is to produce defenses that are not heard as defenses but as cooperation and to show cooperation without foregoing opportunities for mitigation.”34 We see also that the sentence “I don’t know” is uttered so as to avoid confirming the knowledge of something that would further the blame-implicative nature of the facts.35
The excerpt also underlines the function of questions in criminal prosecution, which is mainly to extract from the interviewee “answers that build up to form a ‘natural’ argument for the jury.”36 It creates the kind of incongruity that has already been referred to above. From the sense of normality that is mobilized and the discrepancies that are identified vis-à-vis this normality, many inferences can be drawn. As Matoesian puts it, in his study of a rape trial, “through a myriad of linguistic and sequential resources, the defense attorney creates a turn-by-turn disjunction between category bound activities/states and the rapist category, drawing attention to the abnormality of rapists, the normality of his client, and the irrationality of the witness’s actions if he were a rapist (or the rationality of her actions with a non-rapist). There is no way the witness can do ‘normal’ things with someone who is supposed to be an ‘abnormal’ person. In this way, we can see how social structure is mapped onto categorization work, and how categorization, in turn, is harnessed as an interpretative resource in the constitution of grammatical sequential structures.”37
Finally, the same excerpt points to the goal-oriented nature of all these activities that together make up a judicial setting. These teleological activities38 are consequential for the definition of the person in the sense that the goals which people seek to define the strategies that are used so as to achieve these goals, and these strategies, in turn, imply the characterization of the person in specific ways. In other words, legal interaction is a linguistic game, in the sense Wittgenstein gives to the notion, i.e. an activity which in part determines the role that language will play and the particular strategies or procedures that are used within this activity.39 In sum, the use of language is dependent on the context of its use and in particular on its institutional setting.