Truth, Intentionality and Evidence by Yazid Ben Hounet Deborah Puccio-Den

Author:Yazid Ben Hounet, Deborah Puccio-Den [Yazid Ben Hounet, Deborah Puccio-Den]
Language: eng
Format: epub
Tags: Nonfiction, Social & Cultural Studies, Social Science, Anthropology
ISBN: 9781317238942
Publisher: Taylor and Francis
Published: 2017-03-27T04:00:00+00:00

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, 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 Evans-Pritchard (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).

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