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Sunday
May032009

Update on the Shia Family Law

I finally did manage to get hold of an amended copy of the law and some other documentation explaining the changes, for which I thank Anand Gopal of The Christian Science Monitor and a few other generous contacts who further elucidated the process of writing it.  The law is, in its current state, more or less what I expected, basically a boiler-plate transferal of generally accepted Shii fiqh on areas concerning personal status.  It also seems that the authors consulted a traditional collection of fiqh in drafting it rather than a contemporary document such as the Iranian Civil Status Code.  If I’m wrong on this, please correct me.  I do find this interesting, though, because Afghan Shiis have to walk a political tightrope, asserting their unique identity but also making sure they are not seen as agents of the Iranian state. 

A lot of the problems created by this law are also technical in nature, in that one article refers to the minimum age for marriage while another gives underage marriage as a possible justification for annulment of a marriage contract, suggesting that underage marriage might have happened.  In terms of applicability, the law simply states that it is applicable “to Shiis” and leaves it at that.  Therefore, the question of jurisdiction over mixed couples remains unclear.  It also does not appear that there is anything to stop a Shii from going to a Sunni court or vice versa, given that Afghans do not register as one or the other denomination and regardless, Shiis and Sunnis frequently don’t even acknowledge the legitimacy of each other’s confessions.  One last major problem I see is that it’s an irregular fit within an Islamic legal system and  it will end up being perceived as such.  Judges are bound to the law and only allowed to issue fatwas on issues not covered in it.  This isn't un-Islamic, but it will likely clash with the popular perception of Islamic law, which is that of involved and responsive justice.  If the law is put into effect, expect problems of the sort that we have seen in similar systems like in Iran and Israel.  Civil status laws also look funny in an Islamic context because so much more is contractual, like marriage and personal relations, as opposed to the Western heritage where such things are sacramental.  Often, no penalties are incurred relating to the state but rather are decided by the disputant parties, so it also seems a waste of resources to have to seek a ruling from a state court rather than one’s local village mullah.  A reoccurring problem in governance here is the state trying to do too much and mucking things up rather than just doing a few things well.

I thought of an excellent source for anyone who’s interested in pursuing these matters further:  Laleh Bakhtiar’s Encyclopedia of Islamic Law: A Compendium of the Major Schools, offers a survey of opinion across the four Sunni schools and the Ja’fari Shii one.  It’s not a substitute for understanding the process of reasoning behind a given fatwa, but it is a rough guide.  The author highlights the many issues on which there are differing opinions between jurists of a single school.

References (5)

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    Update on the Shia Family Law - The Global Californian - Scott Bohlinger
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    Update on the Shia Family Law - The Global Californian - Scott Bohlinger
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    Update on the Shia Family Law - The Global Californian - Scott Bohlinger
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    Update on the Shia Family Law - The Global Californian - Scott Bohlinger
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    Update on the Shia Family Law - The Global Californian - Scott Bohlinger

Reader Comments (1)

Hi Scott,
I appreciate your effort to bring light in a dark chapter of western journalism.
I've tried to contributed from an additional angle these days
http://www.qantara.de/webcom/show_article.php/_c-478/_nr-895/i.html
blog is: www.paropamisus.blogspot.com
best
Martin (Zack's friend, see our meeting in the Gandamak the other day)

May 10, 2009 | Unregistered Commentermartin

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