Tuesday, May 6, 2014
Despite the fact that the United States has poured over $900 million in “rule-of-law” funding into Afghanistan to “modernize” the country’s civil codes and to institutionalize more robust rights for women, many Afghan women face lives defined by arranged marriages. According to a recent article in the New York Times, the legal basis for these marriages is not enshrined in the state’s updated civil code, but rather it is embedded in unwritten customary law developed through the state’s tribal culture. Prior to the coalition effort to topple the Taliban from power, the ruling Taliban government imposed a strict version of Sharia law which barred women from receiving an education and ordered them to completely obey their husbands and male family member. While the coalition forces voiced public support for improving the lives of women, mere changes in the law have only made limited inroads in improving women’s rights. While the Karzai government has improved the plight of women in Kabul, outside the capital, the tribal warlords have expressed little support for women’s rights.
A key problem with the rule of law programs lies in the fact that ultimately the mindsets of the judges themselves, infused with dominant cultural norms, determine which “law” is applied. The plight of women throughout much of Afghanistan is difficult to reconcile from a Western perspective. According to the Times article, unmarried women found unaccompanied by a relative outside the home, are “routinely subjected to a virginity test.” Women who abscond from arrange marriages, face death at the hands of their own family members.
A family’s commitment to enforcing customary norms may not dim even when they emigrate to the West. Two years ago, a Canadian man enlisted his son and his wife to kill three of his teenage daughters. The family had left Afghanistan in 1992 finally settling in Canada in 2007. Canadian authorities stated that the killers believed that the victims had brought shame to the family because of their dress, dating, and use of the internet.
The limits of legal reform in Afghanistan were foreseeable. For at least a decade, law and society scholars have highlighted the link between law and culture. As one example, Lawrence Rosen’s book, Law as Culture (2006), highlights the inseparability of law and culture as well as the fact that one should not view the impact of culture on the law as a mere afterthought.
Associated Press, “Honour Killings: Canadian Authorities Finds Afghan Family Guilty of Honour Killings,” The Guardian, January 29, 2012.
Heather Barr, “Women’s Rights in Afghanistan Must be Steadfastly Respected,” JURIST-Hotline, March 5, 2014.
Paul Schiff Berman, “The Enduring Connections Between Law and Culture: Reviewing Lawrence Rosen, Law as Culture, and Oscar Chase, Law, Culture, and Ritual”, 57 Am. J. Comp. L. 101 (2009)
Blog Post, N. Lukanovich, “Women in Afghanistan-Before and After the Taliban,” November 7, 2008. Available online at: http://www.forgetthespin.com/archives2008/women_afghanistan.html.
Clifford Geertz, “Local Knowledge: Fact and Law in Comparative Perspective,” in LOCAL KNOWLEDGE: FURTHER ESSAYS IN INTERPRETIVE ANTHROPOLOGY (1983).
Rod Nordland, “In Spite of Law, Afghan ‘Honor Killings’ Continue, New York Times, May 3, 2014