The problem here though is setting up a dispute resolution program in Afghanistan. Because of the lack of rule of law traditions, the problem is not so much setting up a dispute resolution mechanism; that can be done quite easily. The problem is setting up a dispute resolution mechanism that is effective. That is a much more difficult problem...[and] presents some extra difficulties.
What we usually mean by a lack of rule of law is that a dispute resolution method is not in keeping with the standards we use in the West. Those standards focus on impartiality and transparency. From our viewpoint, countries that lack rule of law systems are not transparent enough and are not impartial enough to be effective. And this is true. Countries that have systems that are impartial and transparent have rule of law systems. So we want countries to adopt measures to make them more impartial—or at least create the likelihood of more impartiality-- and more transparent because we want them to have rule of law systems.
The problem with this perspective is that it tends not to recognize—or to downplay if it is recognized at all--the problems inherent in making those kinds of changes to a country’s system. And when we add the term “corruption” and say that these systems are rife with corruption, which they can be, that word usually kicks things into an emotional high gear and the problem then becomes one of either the people of the country learning not to be as greedy, or as “bad,” as they are or dealing with the low pay of civil servants. Both of these things may be a good thing to have happen, one being more possible than the other, but they both miss the point. There are cultural reasons why these systems are the way they are and these cultural reasons are usually of longstanding having been in place for centuries in some cases. But it also fails to realize that these cultural reasons are often intimately bound up with the identity of the people in that country. To ask them to change is not to ask them to be better but to ask them to jettison part of what identifies them as a society and as individuals in that society.
Traditional societies rest on different foundations than Western societies do. The point is that traditional societies are contextual in the way they see the world and their place in it. That context is defined by relations, personal relations, relations, for example, not with an abstract “government” but with the person in power, something which we would define abstractly as “government.” This relationship identifies them as do their other relationships within their tribe (often substituted now by country), their family and within their religion.
In the West, people know things about people without really knowing them. Any stranger on the street has certain inherent characteristics that identify him or her in the West. These are the characteristics of freedom, equality and fundamental rights as a human being, for starters. And these characteristics establish a relationship between people that occurs whether they know each other or not. But that relationship is abstract; it doesn’t depend on who it is standing before them, be they family, friend or stranger.
In traditional societies it is different. Persons who are a part of traditional societies need to actually know who the person is to know something about that person. It is the actual relationship they have with that particular person that establishes everything for them. With a stranger, they have no such relationship. What this means is that, in the West, even when we have no context with other people we have a type of relationship with them. In traditional societies however, no context with a person means no relationship. And it is that relationship which is important. Those
relationships are found in context.
The point is that in traditional societies, context is everything and that means relationship is everything. Relationship is context. And that relationship also helps to establish identity. In the West, to say, for example, “My dad was a butler; my grandfather was a butler and I am a butler” is a pitiful description. Abstractly it suggests that the person is pleased with subservience and that he has no ambition to do anything other than serve. And that is how it would be viewed from a Western perspective. But in traditional societies, this has meaning. It establishes a relationship, not to power or authority in the abstract, but often to a specific person or family. That relationship can pinpoint where a person is and that serves to create identity. But it also helps to create identity further in another way: It establishes a relationship with a person’s ancestors and with history.
In traditional societies, therefore, the problem for any system of justice is obvious. In these societies, since relations are of the utmost importance, they can have an effect on the justice system, since that may result in some sort of relation to the case or to the trier of fact. (And that relationship may be cultivated if it does not already exist.) In the West and in America, any connection to the case or to any party to a case by any trier of fact, a jury or a judge, will result in a dismissal for cause of the jury member or a recusal for any judge. This is an essential part of fairness for us. No one is to have any relationship with the parties or the case; they must be detached from either. That lack of connection is a significant component in creating
But for traditional cultures, relationship is everything. Though we would see any relationship with the trier of fact to potentially bias the results, they do not see things this way. For them, a relationship to the authority creates a system that is more congenial to their traditions. People know people by virtue of relationships and those people are often expected to get them results by virtue of the type of relationship they have with them. In its favor, one might argue that that type of system takes more into account the people before it, their individual characteristics, more effectively than our impassive system does. There is nothing of the personal in our system. In these societies where contacts and relationships are the norm, however, justice, at least as they would define it, if they define it at all other than relationally, has a recognizable face to it.
This means that an approach that works through existing mechanisms will be much more effective in Afghanistan. And that is what I understand your organization is
doing. That is the only way to go about it, in my opinion. Going about it this way means going about it from their cultural perspective and not our own. That will make for a greater likelihood of success than most rule of law programs have had to date. They tend to go at by looking at it from a Western cultural perspective and then by imposing a Western standard.
One of the things that should be of use is Islam. Most people would think of Islam as a hindrance. It need not be. Historically, Islam has a tradition of fairness and tolerance that can be drawn upon to buttress effective dispute resolution procedures. When the Jews were expelled from Spain, for example, many found refuge in the Ottoman Empire, the site of the caliphate of Islam, and were treated fairly and with a greater degree of tolerance than they had been and had had in Europe. That is a useful tradition.
The same thing is true of any non-Western culture.
One man once stood up at a conference discussing third world poverty where corruption was a topic and said, "One of my colleagues in the Far East once said to me, 'You call it corruption; we call it family values.'" That I think that expresses the problem quite succinctly.