The benefits of mediation over offence-based legal judgments

Studying the history of law in Iran might help point the way to improving legal systems in the West

You might be tempted to think Jairan Gahan’s interest in the legal history of sex in Iran is purely academic.

Jairan Gahan
Jairan Gahan

She is most fascinated by the early 20th century, following Iran’s Constitutional Revolution of 1906, when the country was drafting its criminal code.

How could that possibly be relevant to life in the modern state, especially in the West?

Gahan argues that a precious element of justice was lost in Iran’s transition to constitutional law, a spirit some feminist legal scholars are now trying to revive – a legal framework allowing for more compassion, mediation and reconciliation.

In particular, some scholars point to “the inadequacy of modern codified law to address moral injury,” said Gahan.

“Iran’s modern legal system dismantled an earlier, mostly reconciliatory and mediatory system,” she said. “The bigger picture I’m interested in is: how do we find what is wrong with our legal systems today? The answer is in history.”

Gahan believes studying the history of law in Iran, especially as it applies to sex crimes, might help point the way to improving legal systems not only in Iran but in the West as well.

Modern law, especially criminal law, aspires to a universal ideal of justice that closely adheres to what is written rather than resorting to personal judgment, which can be biased.

Before the codification of law in Iran in the early 20th century, disputes would commonly be heard and settled by a local magistrate.

“Complaints that weren’t political, that didn’t have immediate repercussions for the ruler of the region, were mostly processed through mediation,” said Gahan.

In a recent study called “Sex, Law and the Archives” published in the journal Jadaliyya, Gahan examines the confusion around translating many offences, particularly sexual offences, into written laws.

Gahan searched through Iran’s National Archives looking for the voices of female sex workers and was dismayed to find that most files relating to sexual offences were mislabelled.

“What really got me very frustrated was that the voice of sex workers was completely lost. Most of the cases tagged with the keyword ‘prostitution’ did not actually involve prostitutes,” she said, adding that some court documents and police reports labelled ‘sex-related crimes’ actually contained no sexually charged references or disputes.

In adjusting to a codified legal system, she said, people struggled to define what constituted a sexual offence.

In one case, a nanny had asked the children in her care to transcribe love letters to her fiancé, as she was illiterate. Feeling her honour was tarnished by her servant’s behaviour, the lady of the house filed a complaint with the court accusing her of prostitution – “the easiest, most immediate sort of accusation,” said Gahan.

When the judge finally advised the complainant that honour offences don’t hold up in court, she switched her accusation to one of theft, claiming her servant stole candleholders to give to her fiancé.

“You can clearly see how this new law gives more value to private property than people’s feelings,” said Gahan.

In another case, also labelled under “prostitution”’ in the archives, a nine-year-old boy was accused of sodomy – a crime punishable by death – after consorting with a 14-year-old boy in a bakery.

A judge eventually decided to acquit the child, “not because he was a minor, but because someone else’s life depended on him,” said Gahan.

“It’s interesting that the judge did not actually abide by the law. He did what he used to do under the old system where judges used this kind of case-by-case mediation.”

These cases are from long ago, in a place and time that bears little resemblance to life in North America today. But in Gahan’s view, recovering those lost voices is never a lost cause.

“I do revisionist history – or historiography – trying to recover a life that’s been completely written out of the history of Iran. Once you recover that life, you also understand different legal systems and what modernization has done [to them].”

Her research is also an attempt to “decolonize the story of Islam’s encounter with modernity,” she said, “to always think about how we can imagine different forms of courts, different kinds of law – options that seem unavailable in our current legal consciousness.”

| By Geoff McMaster

Geoff is a reporter with the University of Alberta’s Folio online magazine. The University of Alberta is a Troy Media Editorial Content Provider Partner.


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