Don’t Blame Shariah for Honor Killing

Afghanistan Court

In the New York Times, Rob Nordlund has been covering the story of young Afghan couple Zakia and Mohammad Ali, who, after eloping in March, have been on the run from her family. Since Zakia refused her father’s first choice for a husband, they fear her family will make her the victim of an “honor” killing. On May 3, in a piece about them and a young woman who was the apparent victim of an honor killing, he wrote:

Neither Amina nor Zakia and Mohammad Ali did anything against the law — or, more specifically, against two of the legal systems in effect in Afghanistan: the body of civil law enacted over the past decade with Western assistance, or the classic Islamic code of Shariah that is also enshrined in law. Both protect the rights of women not to be forced into marriage against their will.

Then how do those who commit these murders, for which they’re seldom arrested and tried, get away with it? In Afghanistan, explained Nordlund

… an unwritten, unofficial third legal system has remained pervasive: customary law, the tribal codes that have stubbornly persisted despite efforts at reform. “In Afghanistan judges stick to customary law, forget Shariah law, let alone civil law,” said Shala Fareed, a professor of law at Kabul University.

As you can see, justice is buried three levels down. One is left to wonder how, if they’re following neither civil law nor religious law, they can call themselves judges? Apparently, they’re not what’s thought of as a judge in the developed world. Nordlund again.

… in many places, judges are poorly educated — a majority do not have actual law degrees, and a significant percentage have not even finished high school — a situation that continues to exist, despite $904 million in “rule of law” funding from the United States alone between 2002 and 2010, much of it earmarked to improve the judiciary.

It’s bad enough when a society is encumbered with judges who decide which laws they wish to observe. Even worse ― and making a mockery of the concept of cultural relativism ― is when a segment of society believes that a woman who refuses to marry who her family designates or who takes a lover outside her marriage is bringing more dishonor on her family than the family members who kill and support her killing.

  • Michael_Greenwald

    I suggest Russ reads up a bit more about Sharia. In the western, Justinian system of law, all of the power rests with the state. the state makes laws and thru the courts, which are an arm of the state, enforces them. No legal punishment can be administered outside the laws of the state.

    In Sharia, some of the power rests with the state but some power is reserved for the husband and also local councils. If a husband wants to discipline his wife or children the state does not intervene. This facilitates beatings, honour killings and the murder of blasphemers and apostates.
    So, the statement by Shala Fareed is an embarrassed statement, really designed to lead the reader away from the truth. The truth is, Sharia is a 8th century system which might have been OK then, but not now. Now, it is a living dinosaur, fundamentally incompatible with western democracy and to try and justify it or mitigate is faults is just revisionist.

    In fact,honour killings are almost never prosecuted in the Muslim world. The most serious punishment for an honour killing was in fact levied in the USA against a Palestinian husband and wife who murdered their daughter because she had started wearing jeans and was interested in boys.

    Heavy punishment or death is invariable for apostasy. To try and leave the Muslim religion in a Muslim country will get you either dead or in jail or you will have to flee. Just yesterday a woman who married a Christian man and became Christian was sentenced to death in Sudan. Is Mr. Wellen really comfortable with that? Is that something that needs to be explained away?

    • henpecked

      Based on what I have read of the broad literature on jurisprudence, I think you are wrong about about the theory of Roman and other pre-modern law. It was only with the emergence of the concept of “sovereignty” from the 16th century on that the state came to be treated as THE maker of law. Justinian, as I understand, claimed to be “codifying” existing Roman law, which had developed through the reconciliation of the original customary law of the early Romans and the customary law of other peoples within the Empire. This was treated a jus gentium (law of nations or peoples) and an approximation of jus naturale (natural justice, as discovered through reason. In international law (as developed within the European state system), the doctrine of positivism (that international law is whatever the community agrees on, without being restricted by any higher principles), did not gain ascendancy until the 19th century.
      But most of your comments are immaterial to what the author of the article was saying.

      • Michael_Greenwald

        That is a lll very interesting but in the here and now the reason why Shiria is fundamentally incompatible with western law is because in the west all of the power of the law rests with the state. The state passes some of its authority to the courts and the justice system but in the end the power rests with the state. No judge can make rulings that are contrary to law. In every western country there is a system of appeal to overturn bad decisions.

        But in many of the Muslim countries and all that use Shira, the husband and local councils actually have power that is separate from the state and can make decisions as they see fit. Not long ago a council punished a woman by having the village gang-rape her. These decisions usually concern divorce, punishment of wives and family, the right to kill for honour, for apostasy and infidelity.

        Since these terrible punishments, which we would call mob rule happen all the time I assume you are familiar with them. This kind of system might have been OK in the 8th century, when the power of the state did not extend to all of its provinces but it is incompatible with the world of today, when any dispute can be referred to the courts.

        Also, back in the 8th century, many places did not have prisons to punish criminals, so they had their limbs cut off as punishment. That era is long gone but it incredibly persists in some Muslim states. My x-wife witnessed a couple being wrapped in garbage bags and then thrown off a minaret for adultery. I remember seeing a man’s hand and foot cut off on one of my medical missions to Mauritania.

        The problem is that in some Muslim states the law is extremely slow, or the judges corrupt. In Pakistan a civil dispute over property may take 100 years to settle. Children inherit disputes from their fathers. In these places people often turn to Shira because it is faster. This is the primary reason why Muslims in some places today turn to Shira. But turning to Shira is an act of desperation as opposed to being the Islamic political statement as it has become today.

        Wise people should do everything they can to fight the return of Shira. Make no mistake, those who advocate it are Islamists and fundamentally opposed to democracy and the western concept of justice.

        • henpecked

          I made one or two points that may or may not prove sound. But you go on and on with arguments whose relevance I fail to see. I am unaware of anybody suggesting that Western countries adopt Islamic (or Jewish, Hindu, or whatever) law, whether in its 8th century form or in some modified form. Even in those Islamic countries that claim to be committed to the Shari`ah, the state (with the possible exception of the Taliban regime in Afghanistan) adopts limited versions of it and often applies such principles as public interest that allow the state to set it aside. Somehow, you evoke my remembrance of Sarah Palin’s performance in the debate with her rival for the vice presidency in 2008. She had no sophisticated understanding of the likely topics, but she didn’t fall off the stage in silence because she went on and on with her memorized lines regardless of what she was asked (and the media, as I recall, treated her performance as being pretty good). Enough said!