Is the Afghan Shi'a Family Law Really That Radical?: A Contrarian's View
No, I have not lost my liberal, progressive sensibilities in order to suggest, as per the title, that I actually like the recent law passed by the Afghan Parliament concerning personal status law for the Shi'a minority. But I will argue something else, which is that it's really not that out of the ordinary in the context of the Muslim world, and that I find entirely baffling how it comes to be that some family law regimes in the Muslim world are considered progressive, others medieval, and they pretty much say the same thing. This deserves some attention.
For those unaware, Afghanistan recently enacted a law intended to govern matters of family law for the Shi'a minority, drafted by Shi'a clerics, which has led to a great hue and cry among human rights advocates and Western governments. I haven't found it in English or Arabic, so I am working off news reports, but Obama has expressed his distress, Italy apparently is threatening to suspend troops, and Karzai has now promised he'll review the law. He seems to have been taken by surprise by this, and while the Western cognoscenti shake their heads and deem this as proof he's out of touch (how couldn't he know!), seems to me the opposite is true. He's actually in touch, he knows what Muslim family laws look like, and he can't figure out what got the West so riled up about this one.
There are three provisions that the New York Times identified as being particularly problematic, quoting human rights observers. The first is one requiring women to submit to their husbands sexually when their husbands demand, which critics say legalizes marital rape. The second prevents women from leaving their home, as I understand it, without their husband's permission or for a legitimate reason. The third says they cannot work or go to school without a husband's permission. I tend to ignore this third objection, as it's largely a corollary of the second. We can safely assume a woman who can't leave her home is not likely to be able to find good home schooling or work from home in the home office options.
Now do I like these rules? Of course not, I hate them. Do I find them mildly consonant with my own views of what the Qur'an is supposed to demand, or what the Prophet Muhammad did in his life (his wife employed him)? No. Does any of that have anything to do with the shari'a? No, because I'm one guy in one context, a law professor in a US university, and I don't control the substance of the shari'a. And if we look to who does control the substance of the shari'a, whether it be medieval jurists or modern ones, every single one of these rules is not only common, it's virtually unchallenged in large part. And those rules have found their ways into state law.
To note the very interesting phenomenon of how different state laws that say almost the same thing elicit such different reactions from human rights groups and Western governments, I point to the family law of the Muslim state I know quite well--that of Iraq, as anyone who reads this blog is aware. That family law, which was enacted in 1959 (with a few Ba'ath era amendments) some might recall, was actually defended by human rights groups and Western governments when Islamists tried to Islamize it further. It was described as relatively progressive, and the rise of the Islamist repeal was an attempt to bring women back from some supposed rosy near equality enjoyed under Saddam Hussein. Even our law reviews have so described it on occasion, though the more sophisticated academics who know something (people like my friend Kristen Stilt) were quick to point out this was a bit naive. Bremer vetoed the repeal of this progressive wonderful law, and supposedly the day was won for women.
So how does this supposed progressive law that everyone spent so much effort defending stack up against the Afghan law? Not so well. It's better, but not by much. Article 25(1) makes very clear that a woman who leaves her home without her husband's permission and without a legitimate reason, loses her right to maintenance. The condition precedent "leaving home without permission and without legitimate reason" sounds pretty similar to what the Afghan law seems to say. If the woman were to persist, this could well be "conclusive rebellion" and under Article 25(5) forfeit the right to her dowry, and return dowry amounts already given to her.
It is true it does not say, as the Afghan law does, that the woman MUST not leave the home without her husband's permission, it merely says if she does she is "rebellious" (how do you translate nashiz--see my earlier post for that I think), and her husband can starve her, deny her the right to sleep in the home, leave her out on the street (all part of the maintenance obligation), and if she persists, take from her the money he gave her as insurance against divorce, and leave her.
Now it is true that the Iraqi law does not explicitly say a woman must obey her husband and comply with his demands for sex, it merely says she must obey him, and continues to use the same word nashiz to describe the consequences (all the same--starve, denied shelter, denied clothing, and ultimately if she persists, divorced). And the term nashiz has a clear shari'a meaning and that absolutely includes an obligation to submit to sex, except in the case of a woman being ill and unable to obey. Interesting then that Article 25(2)(d) provides an exception for wifely "obedience" if a woman is ill and her illness prevents her from obeying her husband. Moreover, Article 1 makes clear it's the shari'a that is the main source for interpretive purposes. So we have the shari'a term nashiz, we have the obligation to use the shari'a to guide interpretation, and we have the shari'a exception to a woman's obligation to submit to sexual demands explicit in the law's text. So it's not hard to make the connection. So again, marital rape not okay necessarily, starving wife is okay. Which by the way might well be the same in the Afghan case--the fact that the law obligates the woman to submit to sex doesn't mean the man can take it by force if she doesn't. The marital rape claim might be a bit of hyperbole. After all, there are exceptions in the Afghan case too (same one as in Iraq, if she's ill), so presumably even in Afghanistan you aren't permitted to just force sex, you have to go to the judge, the judge decides there's no illness and then permits the husband to take retaliatory action, ie throwing her out without any money and threatening to take back her dowry. Presumably.
Even the reforms in the Afghan code mirror Iraq's. The main one mentioned was the rise in the marriage age to 18 for men, 16 for women, which is similar to Iraq's though Iraq is 18 across, but 15 I think with parental permission. All improvements on shari'a. So really, the examples given in the media reports at least are NOT, as they are portrayed, a return to Taliban type restrictions on women, they're the ho-hum stuff of Muslim countries generally. Perhaps in Afghanistan less women would appear on the street than in Iraq, because Iraqi men don't generally think of it as their obligation to prevent their wives from buying cucumbers in a market, but if we are going to focus on legal texts, which is what all the attention is on however narrow that focus is, then heavens it's the same thing.
So why was it that Iraq's Saddam era personal status law was so wonderfully progressive and this law is so awful when they are so similar? There are I think two reasons. First, and most obviously, there is the political context. In both cases there has been suspicion and fear of creeping Islamism, but in Iraq the Islamism led to a challenge of the law, while in Afghanistan Islamism led to its enactment. The Shi'a Islamists in Iraq, that is, wanted and want even more than this, they want control of rulemaking apparatus in the hands of clerics and special state courts staffed by judges close to the clerics to deal with uncodified shari'a, and this sends everyone into a tizzy. In htat context, the Personal Status Code looks pretty good.
By contrast, in Afghanistan, that Shi'a minority wasn't getting their own courts (though they tried), they were thus forced into codification and Karzai and the Parliament probably knew the world would watch so they softened it. No child marriage for example. Came up with something sort of like everyone else and figured that was good enough. But not so in a nation where the West's obsession is stopping a resurgence of the Taliban and a return of Al Qaeda. What was progressive in Iraq, the vanguard of Muslim women under Saddam Hussein (meant to be dripping with sarcasm, that phrase) was now Taliban resurgence, or something close to it (couldn't be actual Taliban resurgence as the Taliban despise the Shi'a).
Secondly, the Afghan clerics were probably more explicit than was politically savvy. The Iraqi drafters obviously figured this out. You don't have to say a woman must submit to a husband's demands for sex, just throw out the term nashiz, make clear that the term should be interpreted by shari'a, and the rest will be clear enough to the judge. Even the Shi'a Islamists are politically on top of things here. They don't want the shari'a codified, they just want reference to it as the source of family law, and let judges read the clerical opinions. Part of that allows the clerics supreme authority in rulemaking, but part is I am starting to think just good politics. Don't say a woman has to obey her husband's demands for sex, just say "God's Law" and then the Italians won't go nuts because they'd actually then have to find out what God's Law means and that would take too long. The Afghans have a relatively new country, built virtually from scratch, so they don't have the experience that others do on how to manipulate Western reaction to shari'a. This will I am sure prove to be a learning experience for them.