Forgiveness as a technology of the state

Abstract

Previous articleNext article FreeBook SymposiumForgiveness as a technology of the state Osanloo, Arzoo. 2020. Forgiveness work: Mercy, law, and victims’ rights in Iran. Princeton: Princeton University Press.Katherine LemonsKatherine LemonsMcGill University Search for more articles by this author Full TextPDF Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinked InRedditEmailQR Code SectionsMoreArzoo Osanloo’s Forgiveness work: Mercy, law and victims’ rights in Iran is an exemplary ethnography of legal processes. Osanloo conducted the fieldwork on which the book draws over the course of fifteen years, and the book’s vivid prose carefully renders the depth of engagement with her many interlocutors as well as her intimate knowledge of legal practices and procedures, propelling the reader by means of plot, pathos, and persuasion. The book is an exceptionally rigorous investigation of law and society as separate but intersecting and internally dynamic domains. The book achieves its broader aims of showing how the judicial process produces a semiautonomous field of forgiveness work and of giving the reader insight into what forgiveness work entails by analyzing the practices and psychological, legal, and political investments social workers, actors, relatives, and cause lawyers draw on to save convicts from execution. It is provocative in the best sense, opening as it does questions of politics, ethics, and the practice of anthropology through a rich discussion of an empirically fascinating case.Forgiveness work also, through its ethnography, elaborates a theory of the state. Throughout the book, Osanloo refers to the state as the holder of “the monopoly of legitimate violence” (p. 52). The Weberian formulation implies a state outside of and exercising power over society. Examples of this power appear throughout the book: cause lawyers (lawyers who both defend clients and advocate for reform) are prosecuted, as are anti-death penalty activists; social workers must collaborate with the state for fear of retaliation. Yet the much stronger and more powerful undercurrent to the argument shows that the state is productive, that its projects are hegemonic. The state, as lived in the persons of judges, communicated in legislation, and legitimated by social workers and actors, manufactures its monopoly of legitimate violence by means of a network of state and nonstate technologies.Judicial discretionJudicial discretion lies at the core of Osanloo’s discussion of forgiveness work in the court itself. We learn that Iranian criminal law gives the next of kin of victims of intentional murder the right to qisas, or retribution, while the new Criminal Procedure Code “codifies the religious duty to be merciful and compassionate as an imperfect duty on the part of government officials to bring about reconciliation wherever possible” (p. 2). Osanloo further specifies that procedurally judges are only able to push for reconciliation after the sentencing phase of the trial is complete (p. 96). Formally, then, both qisas—the right to retribution—and forbearance—also a right—are written into codified state law, though the former resides in the criminal and the latter in the procedural code. Put otherwise, both a strict nondiscretionary right to retribution and judicial discretion are codified.As Osanloo notes, her discussion of judicial discretion places her squarely in a longstanding debate about the character of Islamic law that simultaneously accuses it of being arbitrary, because allowing too much judicial discretion, and of being too rigid (p. 86). The progenitor of both of these views, instructively, is one and the same person. Max Weber states in Economy and society that kadijustiz refers to “informal judgments rendered in terms of concrete ethical or other practical valuations” exhibiting excessive judicial discretion and arbitrariness (1968: 976). He also argued that this quality of kadijustiz is “proverbial” not “historical”; the latter, he argues is actually “extremely formalistic,” only seeking recourse to judicial discretion where rules are not available (1968: 1115). A wealth of literature on Islamic law since Weber has noted and criticized this characterization, arguing that Islamic law is driven by a concern for fairness (e.g., Rosen 2018). This has opened up a different disjuncture between codified law, which has “transmogrified” shari’a in modern states (Asad 2003) and fiqh, or noncodified adjudication carried out by jurists. The criminal justice system Osanloo analyzes has codified Islamic law and included qisas as a right given by the Quran, but also “provides a legal framework for those judges to act as Islamic jurists in certain cases” (p. 86). That is, kadijustiz, as the judge’s obligation to act ethically and fairly, has been given a space within codified law. This legal structure is particularly striking because Osanloo takes up and seems to accept the characterization of codification as “ossification” and therefore as the antithesis of Islamic jurisprudence (fiqh), which resides in “heated debates and nuances … which take place in religious schools in Qom” (p. 97). Yet the codified system she has presented incorporates a space of discretion. While recent studies of Islamic law administered by modern states argue that they eradicate fiqh or relegate it to the sphere of ethical rather than legal institutions, the Iranian state appears to have risen to the challenge to make fiqh part of law (see Agrama 2012; Asad 2003; but cf. Lemons 2019). One question the book raises, given this argument, is how the judges in the Iranian courts are trained: are they trained in religious schools or in Iranian law schools? If the latter, do these curricula include training in fiqh?The remarkable proposition the book implies then, is that in this case codification has not “concealed” (p. 98) the ethical and flexible aspects of law, but revealed and mandated them. The codification itself has enabled the illustrious judge Aziz-Mohammadi to hand down four thousand sentences of qisas over his career while stating, with perfect coherence, that he is personally against qisas, and that he works hard to convince victims to forgive just as he himself forgave his father’s murderer (pp. 92–98). It is perhaps worth remembering, as a comparative aside, US Supreme Court justice Sonia Sotomayor’s statement: “our gender and national origins may and will make a difference in our judging … I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.”1 The statement was controversial because it made explicit a conundrum at the heart of law: it must be neutral, treating all who appear before it equally, and it must furnish substantive justice by relying on the capacities of individual judges to recognize and address injustice in a nonneutral world. Aziz-Mohammadi and other judges live this conundrum by giving defendants sentences of qisas and thereafter trying to persuade families to forbear by helping them to recognize injustice differently. By mandating judicial discretion in the interest of mercy, codified law makes discretion itself a technology of the state.Osanloo makes it clear that this codification of restorative justice as an aim was “colored in,” or made explicit by the legal reforms of 2012 and 2015 (pp. 62–68). Given the importance of these reforms to judges’ engagement in forgiveness work, it would be helpful to know more about the process of reform. Was it actors such as the cause lawyers introduced at the end of the book who pushed for the legal reforms so pivotal to forgiveness work? What role do global trends toward restorative justice play in reemphasizing the Quranic mandate of forbearance? What were the debates in the legislature and the judiciary about the reforms? Knowing more about the legal reform process would help readers to understand how the state’s own positions and contours are given shape even as judicial discretion becomes a technology of state power.Forgiveness work as a form of lifeIn the second part of Forgiveness work, readers get to know a cast of intrepid forgiveness workers. Mahboubeh, a social worker, travels the country visiting murder victims’ families, a risky and uncertain endeavor. Members of the Imam ‘Ali’s Popular Students Relief Society perform forgiveness plays, while a team of social workers and actors hope to instill a “feeling of forgiveness” by means of a play about capital punishment. Although these people are not employees of the state, they do not challenge the right to qisas. Instead, they seek to cultivate in “society” a “culture of forgiveness,” a valorization of forgiveness over retribution. They do so by drawing on theological, folkloric, and ethical idioms. As in the case of judicial discretion, Osanloo draws a picture of forgiveness as a form of life created by the state and its laws and saturated by its logic, even as forgiveness workers argue that they operate in a “lawless” arena. In Osanloo’s words: “By giving private citizens the right to decide on the exercise of violence, the state implicates its citizens in its logic for settling disputes, regardless of whether they exercise the right or forgo it; the state is never completely absent from extra-judicial modes of accountability” (pp. 52–53, emphasis added).There is an instructive formal congruence between the argument that judicial discretion has been made a technology of state sovereignty and the argument that forgiveness work carried out by nonstate actors such as social workers and artists “serve to legitimate, rather than challenge, the state’s laws” (p. 269). As Osanloo notes, judges are the system, which means that what surprises the reader is their capacity for discretion and their dissenting views about qisas. Social workers, artists, actors, and lawyers are nonstate actors whose work Osanloo argues nonetheless bolsters the state’s power. The congruence between these arguments suggests that the state insinuates itself into society, that it is not only dominant but hegemonic. To understand how, I turn to a concept that Osanloo introduces early in the book but then lets go—the “form of life” (p. 7).Osanloo argues that forgiveness work gives rise to a form of life, a concept she situates with reference to Agamben and Geertz. For Osanloo, both of these thinkers propose “form of life” to capture the connection between various domains of life. For Agamben, the term marks the social, political, economic, and ethical spheres that constitute a life; for Geertz it situates people’s sense of their own actions by contextualizing them “within larger frames of signification, and how they keep those larger frames in place, or try to, by organizing what they do in terms of them” (Geertz 1983: 180). Osanloo’s book, however, offers a more dynamic conception of the form of life. The form of life to which forgiveness work gives rise includes an array of actors and struggles between them—ethical, emotional, juridical, and political. The form of life includes state employees and people unaffiliated with the state. All of these actors in all of their interactions are struggling with the question of life and death, of forgiveness and retribution. They share the view that qisas and forgiveness are contradictory actions that coexist in “our religion and our law,” and they share the view that forgiveness is the morally superior of the two options. Faced with this contradiction, they seek change, usually by working within the frameworks set up by state law, and most argue that change must be cultural, not legal. In this sense, Rahel Jaeggi’s concept of the form of life is helpful to think through forgiveness work. “Forms of life,” Jaeggi writes, “… are not only the object but also the result of disputes” (2018: xii, emphasis in original). Yet these disputes are contained in and by the logic of the state, emphasizing the bond of forgiveness work rather than its autonomy.Cause lawyers and autonomyInstructively, Osanloo includes among forgiveness workers a group whom I briefly mentioned above: cause lawyers, to whom the final chapter of the book is dedicated. Cause lawyers stand out from the other forgiveness workers because they try to save their clients from execution by working with and in the law but also “advocate legal reform, seek to draw attention to human rights, women’s right, and children’s rights … and [to halt] the death penalty” (p. 244). This is the only category of actors in the book whom Osanloo diagnoses as opposing, rather than collaborating with, the state.Osanloo’s inclusion of cause lawyers in the book’s final chapter reframes the book’s analysis of forgiveness work as a semiautonomous sphere and thereby introduces another dynamic into the analysis of the state. I have suggested until now that the semi-autonomy of this sphere is apparent in the saturating quality of the state’s logic: the state is in fact part of forgiveness work as a form of life. Forgiveness work appears here to be a technology of the state, and it is difficult to see its autonomy. This suggests that the state is integrated into society rather than standing away from it and draws attention to how the logic of the state gives rise to arrays of practices. It shows, in short, that state power produces subjects, social relations, and actions by drawing on kinship, folklore, and ethical and religious norms.Cause lawyers, by way of contrast, appear to be truly semi-autonomous. Is it through the cause lawyers, then, that the reader is invited to an outside that pushes for and manages to secure change? Do they reveal the limits to the other forgiveness workers’ ingenuity? Do they, by way of contrast with other forgiveness workers, show how the state effect is produced? Indeed, their autonomy shows how, in the work of judges and lawyers, in the reforms to the legal codes, in the ideology of forgiveness preached and performed by the social workers, the state lives in local relations of power that reproduce its logic and shore up its autonomy even as they seek to undermine its repressive effects.Notes1. https://www.nytimes.com/2009/05/15/us/politics/15judge.text.html?pagewanted=all. Accessed on July 12, 2021.ReferencesAgrama, Hussein Ali. 2012. Questioning secularism: Islam, sovereignty, and the rule of law in modern Egypt. Chicago: University of Chicago Press.First citation in articleGoogle ScholarAsad, Talal. 2003. Formations of the secular: Christianity, Islam, modernity. Stanford: Stanford University Press.First citation in articleGoogle ScholarGeertz, Clifford. 1983. Local knowledge: Further essays in interpretive anthropology. New York: Basic Books.First citation in articleGoogle ScholarJaeggi, Rahel. 2018. Critique of forms of life. Translated by Ciaran Cronin. Cambridge, MA: Belknap Press of Harvard University Press.First citation in articleGoogle ScholarLemons, Katherine. 2019. Divorcing traditions : Islamic marriage law and the making of Indian secularism. Ithaca: Cornell University Press.First citation in articleGoogle ScholarRosen, Lawrence. 2018. Islam and the rule of justice: Image and reality in Muslim law and culture. Chicago: University of Chicago Press.First citation in articleGoogle ScholarWeber, Max. 1968. Economy and society: An outline of interpretive sociology. New York: Bedminster Press.First citation in articleGoogle ScholarKatherine Lemons is Associate Professor of Anthropology at McGill University. She is the author of Divorcing traditions: Islamic marriage law and the making of Indian secularism (Cornell University Press, 2019).Katherine Lemons[email protected] Previous articleNext article DetailsFiguresReferencesCited by HAU: Journal of Ethnographic Theory Volume 11, Number 2Autumn 2021 Published on behalf of the Society for Ethnographic Theory Article DOIhttps://doi.org/10.1086/716489 © 2021 The Society for Ethnographic Theory. All rights reserved. Crossref reports no articles citing this article.