Entries in governance (4)


The Government Vs the International Community

As Hamid Karzai continues to make statements that emphasise his supposed distance from the international community, militant groups, not needing to distance themselves, have come to appear more accommodating.

Read more.


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.


What's Really Happening with the Shia Family Law?


The Shia Family Law, or more properly, Shii Personal Status Law, is currently garnering a significant amount of media attention and has raised something of an outcry in the West.  Without a doubt the law is problematic, but the more important issue is what it shows about the West's understanding of Islamic law and legal tradition and hence, some of the basic issues we are facing with (re-)constructing Afghanistan.  For a general summary of the outcry, refer to this Wikipedia article.  Another major problem is that neither I nor anyone I know has been able to get a text of any draft of this law, hence my discussion is necessarily limited to what has been reported.  For an example I take to be typical of mainstream reporting on this issue, see this Washington Post article.

What's missing in most of the commentary about the law is the context under which it was developed.  This law is not unusual for Islamic countries, many of which have one or more religious civil codes, some of which exist alongside a secular alternative.  There are three issues that can help us understand this law and its context: its applicability, its place and origins within Islamic legal theory, and the legislative process in Afghanistan.  The name, the Shii Personal Status Law, indicates that this law applies to Shiis, a distinct group with their own dogma and fiqh (jurisprudence).  The majority of Afghans are Sunni and belong to the Hanafi school of law,one of four widely accepted Sunni legal traditions.  The Shiis in question are Ithnaashari, which has only one school often known as Ja'fari.  Ideological and dogmatic disputes aside, for practical purposes, Shiis have a different legal traditional and hence get a different law for use amongst themselves (In countries with non-Muslim minorities, Christians, Jews, Zoroastrians, Hindus, and so on are also effectively treated as other schools and get their own personal status laws as well).

Now things get complicated.  A lot of how the law will relate to the individual will be determined by whether participation in it is compulsory.  Given that there is a Sunni personal status law, there will certainly be more than one law applicable to civil cases.  So does a Sunni have to seek redress under their code?  Is their participation required by product of their birth? Traditional interpretations often classify someone as Muslim, puzzlingly, by accident of birth unless they deliberately recant.  If participation is not compulsory, then two Sunnis in a dispute can seek adjudication under the Shii law if it would be more favourable to them.  This is a common practice, even on the level of individuals soliciting advice from different religious authorities of the same school in order to get a suggestion and rationale that justifies the preferred course of action  (for a good explanation of 'fatwa shopping' see this article in Foreign Policy).  If a dispute arises between a Sunni and Shii (husband and wife or business partners, etc.), which court do they go to then?  Will there be secular or 'default' civil code to go along with the religious ones?  If this is the case, then there is a very real possibility that the religious codes will live on as sops to group identity but be practically superseded by the secular law and private arbitration.  In any manner of wording or implementation there are numerous problems here, so logically one might ask why even have a sectarian law for such matters when the creation of said law will effectively move them out of government courts in any case?'  The reason is in the history and the development of Islamic law.

Islamic law is often covered as if it were a set of unambiguous pro- and prescriptions immutably lying around somewhere.  In reality, it is a fully fledged legal tradition comparable to others such as the Western one that grew out of Roman law.  It is full of cases and opinions and has been embodied from time to time in codes, decrees, and norms.  For anyone interested in how it works and how it came to be, I highly recommend Wael bin Hallaq's Islamic Legal Theory and The Origins and Evolution of Islamic Law as both technical and highly accessible introductions.  Islamic law seeks to be comprehensive and makes the assumption that any act can be classified as obligatory, preferable, indifferent, disliked, or forbidden.  Furthermore, Islamic law developed outside the state and in a pre-modern context where even the strongest state would be practically unavailable for any but the most large-scale issues.  In Islamic law, jurists (fuqaha) use jurisprudence (usul al-fiqh) to determine what the Sharia is.  The Sharia is the way the world works and because human beings are not omniscient, they can't know it with absolute certainty and have to use the resources at their disposal, such as reason and revelation.  Think of it as a kind of natural law theory.  This means that Sharia is applicable to everything.  One thing that often strikes Westerners is how particularistic Islamic legal opinions (fatwas) can be, ranging from international relations to whether one should recycle if the city provides no such service.  Go to Ali Sistani's website to get an idea of this.  Simply put, if  the Sharia is the way things are, then no question is off limits, and even if the answer to a question remains uncertain, it might still be worth taking a stab at and issuing an opinion on it.  Therefore, a lot of Islamic law (rulings and opinions issued under the rubric of Islamic legal theory) is not Islamic per se.  Quite a bit of it is simple logic, common sense, and highly variable according to place, time and social circumstance.

Now that I've explained just how universal the system we're dealing with is, I'm hoping that you're asking where the limits are when they need to be applied to specific and finite pieces of legislation.  That, in fact, is the crux of the problem when traditional norms are taken out of their context and thrown unaltered into a modern environment.  As a pre-modern legal system, Islamic law would have been no more or less able to develop and cope with modernity than its Western counterpart.  The problem is that the development of Islamic law was interrupted by a mix of colonialism and its proxies (Westernising authoritarian regimes), the major effect of which, for our purposes here, was to destroy the traditional legal élite and leave the rest of the non-specialists to find and define their own meanings.  The result is that many Muslim communities came to conflate pre-modern traditions with Islamic best practice (the subject of pre-modern values in the context of modernity is a whole subject in itself, for more of my commentary on what's happening and how it works, see this article).

The parts of the Shii Personal Status Law that have appeared in the press are rather typical of pre-modern legal rulings that would have been necessary to keep order in a patriarchal agrarian society (hey, I don't support it, but that was the internal logic).  Provisions that sexual relations happen at certain minimal intervals would have had the logic of preserving domestic tranquility in marriage by attempting to limit a woman's control over one of her most important assets in such an environment, her sexuality.  They would also have had the effect of ensuring that the marriage was more than a simple financial transaction and that the wife was not merely chattel.  Alongside the onerous provisions regarding sex, you also found things like the husband being required to provide for the wife while she gets to maintain her own separate financial resources.  In a place where you don't have much authority beyond what people in your immediate vicinity can agree on, these crude social controls were necessary and probably prevented their fair share of human degradation.  Failure to adhere to one such principle (don't forget, in-laws would be involved) might not result in a penalty but raise the question of renegotiating or dissolving a marriage contract.  Furthermore, pre-modern legal norms necessarily place a premium on maintaining overall communal harmony at the expense of the individual’s happiness and freedoms.  A female Afghan friend of mine once joked about a cartoon of a 20-year-old woman looking at her 60-year-old husband and saying, "It's been four days, it's time now."

The Belgian civil code is no less Islamic than the post-revolution Iranian Personal Status Law, but it might seem that way if you're a Muslim Iranian who knows nothing of Belgium.  Similarly, adherents of an Afghan affinity group looked around for their own unique legal expressions to show their independence.  What they found was evidently traditional rulings (some with more or less agreement amongst jurists) that were then slapped together and written up as a law.  Decontextualised, many of these provisions would have been inappropriate or even inhumane and sometimes probably mutually contradictory as well.  The Afghan parliament,which drafted the law alongside the Shii ulama, is itself a mixed bag of a number of political actors who generally come from tradition backgrounds and are still coming to grips with the workings of modern structures such as parliamentary committees.  This poses limitations on parliament's functionality beyond the uprightness or competence of individual parliamentarians.  I once interviewed for a parliamentary capacity building programme and during the interview, they described to me how things would go smoothly for a while and then someone would look at the most routine boiler-plate provision in a bill and raise a protest over it that would halt the progress of the entire bill.  Karzai probably didn't look at it either, until the outcry over it grew, and again, saw it as a sop to the élite of the Shii community (it might not have mattered much anyway, if its applicability turns out to have been elective).  In the end, everyone is caught with their pants down and Westerners ask the question they always should have been asking:  What am I spending my taxes on?

Where does the blame lie in this whole mess and what can we learn from it?  Between parliament and the executive, there may be some bad apples and recklessness, but overall these are a bunch of people with a very difficult job trying to do the best they can in circumstances they are struggling to understand.  Getting the government of Afghanistan to develop effective legislation that fully respects human rights and that Afghans feel they have ownership over, is one of the central deliverables the international community is trying to achieve in (re-)constructing Afghanistan.  The least we can do as Westerners is not freak out every time we hear something like this.  For the media, the most annoying thing was that most of the reporting was in response to the original discovery of this law and the reactions to the reactions to that.  Having read a fair number of Afghan laws, I can say that there are many more such examples that we could be filled with righteous indignation at.  This one just happened to get attention.  That doesn't mean that every human –rights-violating gaffe should merit a story, but it does suggest that the process is the story.  In addressing the Shii Personal Status Law, we would do well to pay attention to the context of the society, culture, and circumstances under which it was produced.  And remember, we have yet to see the final law.