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Nobody, it seemed, really knew what the Quran had to say in this particular case. It was enough, apparently, simply to refer to its inherent authority. There was an understanding that good order was grounded in the Quran. A just settlement would be decided by, and for the benefit of, the entire community, not just the injured mason.
At this point, the mechanic was brought in. He greeted the mullah, kissing him on both cheeks before shaking hands with the rest of the elders. He took his place between the wounded mason and his father. The engineer took the mullah by the hand and dragged him outside. The room collapsed into a frenzy of argument and counter-argument as the remaining elders offered their opinions. I heard a sheep offered as a sufficient penalty, then two, but the discussion soon settled on an appropriate sum of blood money to be paid in compensation to the mason’s family.
The engineer and mullah returned to be told that 15,000 afghanis should be paid as blood money. The mullah stroked his long black beard. He was indignant and pressed for more, with the engineer in support. They settled on 30,000 afghanis ($600) despite pleas for leniency from most of the elders. The engineer wasted no time in scribbling down the agreement. The mason and mechanic were thrust forward and were made to sign it. The engineer grabbed the mechanic’s hand and forcefully pressed his thumb into the inkpad and then on to the document. The money was produced and thrown into the centre of the room. The engineer took the mechanic and beat him around the head and body in a show of rage, turning as he did so to let us see the mischievous smile that crept across his face. Afterwards, he privately encouraged the mullah to return half of the money to the mechanic’s family. The shame of receiving such a heavy fine in public would be enough to deter others from repeating the offence. Too harsh a penalty would kindle resentment.
The engineer’s shaping of the outcome seemed to satisfy most people in the room. Order was restored through an instinctive balancing of public retribution and private clemency, so that none would lose their dignity, including the mechanic. Here, in a sense, were two of the main ways in which we think about justice in the West: Bentham’s utilitarianism and Kant’s universal respect for persons as bearers of dignity. But perhaps the most remarkable quality with which the engineer choreographed this trial — and the outcome was far from certain — was his sense of theatre.
He beat the mechanic until he cowered in the corner shaking with fear. But as he huffed and puffed and stamped his feet and winked at the alim there were quiet smiles from around the room and everyone knew that he had been suitably humiliated. When 15,000 afghanis was put forward as an offering, the engineer saw immediately that this was not enough. He vigorously collected up the money and thrust fistfuls of notes back into the laps of the bemused elders. Then, with studied concentration, he took a bundle of notes from inside his own jacket and began counting them out very slowly. There was no question that they would allow a third party to pay their debt. But rather than react angrily to having had their first offer rejected, they could not help but smile at the ridiculous manner in which the engineer was counting out his money in place of a more suitable settlement. This created space in which fresh negotiations could take place and a sum twice the amount of the first was agreed upon.
There are a number of lessons in all this. State intervention was seen as ineffective and unnecessary. The community’s instinctive response was to overlook the local police, as an instrument of state, in favour of the traditional shura. Justice was administered according to a consensus among the community’s elders, which emphasised their authority within the community and denied any opportunity for private revenge. The consensual element in this procedure worked because of the non-confrontational way in which the shura was conducted. The mechanic and mason were sat side by side as their elders discussed their fate. The decrepit alim who sat in the corner was unable to say much, but his mere presence, as the most senior member of the community, commanded respect. The mullah was allowed to vent his anger and the community was able to participate in deciding the penalty. Consequently, they had a responsibility to make sure that the penalty was enforced. The mechanic was humiliated in front of all the elders by being beaten and thrown out of the room. However, this was done in such a way that he remained part of the community due to the engineer’s quasi-comical beating.
•••
The contrast with our legal system is striking. It is likely that the mechanic would have been arrested, charged with aggravated assault, perhaps given an Asbo under the last government, bailed, then released. This whole process removes him from the community and identifies him as a criminal. It deprives the mason and his family the opportunity to express their anger and to participate in the administering of justice. Ultimately, it weakens the community. The mechanic is not held accountable to anyone in the community, allowing him the continual option of violence without account. The community is powerless to impose its authority. The mason remains a victim and is unlikely to benefit from any penalty imposed on the mechanic by the government. While consensual and consultative governance is preferable to authoritarian decree, it is only possible in the Afghan context because of the honour and influence given to the community’s elders.
But where are these authority figures in our own communities? Despite the fact that the alim has remained silent throughout this story, his voice is perhaps the most powerful of all. For he represents a life that has been lived well, in regard to his religious, communal and family duties. He is honoured because his life is symbolic of qualities that the community believes to be fundamental to their sense of identity and purpose. If, as Aristotle might have put it, we are worthy of influence and honour in so far as we possess civic virtue and excellence, then perhaps our search for justice could be helped by thinking more about how to include local men and women of honour and influence into the justice system?
There are individuals to whom we have given this honour: they are called Justices of the Peace. They come from a variety of backgrounds as volunteers and the criminal justice system has come to rely on them to handle most criminal cases in the UK. That they are volunteers is important, since there is no financial incentive to acquiesce to state pressure. But my local county court was closed recently: one of 157 closures across the country. JPs complain that their influence has waned in recent years as district judges have been given more authority. District judges dealt with most of the cases resulting from the riots. This surely is a missed opportunity to build on the strength of the localised JP system and prevent the weakening of JPs’ position within our society.
It is difficult to place this upward flow of responsibility, away from communities and towards the centre, within the Big Society narrative. It feels like a small eddy where the current is starting to circulate upstream. If there can ever be a role for local people of standing to assist the state in arriving at just outcomes for members of their own communities, surely the Justice of the Peace model merits more support?
William Beharrell is a former deputy managing director of Turquoise Mountain, a charity that preserves Afghan heritage.
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