Women & Islamic Cultures Family, Law and Politics

Afghanistan

With a well-defined judiciary in the constitution
and jurisprudence composed of the Sharì≠a, Civil
Code, and traditions of its ethnic groups, Afghan-
istan does not lack laws. Women’s access to and
ability to use the judicial system are mainly affected
by lack of legal literacy, cultural pressure, and inad-
equate judicial infrastructure. The concept of
claiming and taking rights does not exist in the soci-
ety. Men and especially women believe rights are
given to them. They seldom understand the rela-
tionship of rights and laws to the official bureau-
cracy and processes of a court system. Ninety-nine
percent of Afghans being Muslims, Islamic literacy
is widespread in the areas of marriage, divorce, and
inheritance. With illiteracy at around 90 percent
for women and 80 percent for men, this has impli-
cations on how fast Afghanistan can – and perhaps
should – implement more civil codes. Knowledge of
Islamic rights, transmitted mostly through oral
interpretations, is mixed with ethnic traditions and
currently imbued with extremist political ideolo-
gies that utilize negation of rights of women as their
axis of control. Very few Afghans have ever read
either the Afghan constitution to understand their
rights and the judiciary, or the Qur±àn translated
into their own languages. Fewer still know Arabic.
This is why the Afghan Women Roqia Center for
Rights, Studies and Education in Kabul has pub-
lished, and distributes gratis, a translation in Dari
of the Qur±ànic verses pertaining to women.
In addition, the obstacles to women using law are
the cultural mores and traditions of the ethnic
groups and the pervasive social patriarchy. This is
more pronounced among the tribal Pashtuns whose
oral code of conduct, the Pashtunwali, counts zan,
zar, zameen(women, gold, land) the most impor-
tant things in life. All Afghans consider women
to represent the family honor and/or an economic
opportunity. Losing face and being shamed is the
highest disgrace. The code of silence to show
family/clan/tribal solidarity is very strong. Thus,
marriages occur in front of a mullah, not a judge,
divorces happen in front of family, or men sell their
wives to other men for as little as two rifles; rarely
is any of this reported to the court and so justice for
women is affected. Suffering and injustice occur
not because the Sharì≠a gives daughters half of the

Law: Access to the Legal System

inheritance received by sons. Rather, due to socio-

cultural pressures daughters can rarely claim and/

or get that half from brothers or uncles (often sons

also suffer this difficulty). Daughters claiming this

right are often subjected to being disowned for life

by the family (qat’-e kleegaryin Pashtunwali).

Another factor affecting women’s access to law is

the state of the judiciary in contemporary Afghan-

istan. After long decades of war, much of the infra-

structure has been destroyed. Courthouses do not

exist everywhere; roads to reach a courthouse are

impassable; judges are no longer trained in Afghan

jurisprudence (most have Sharì≠a training); the legal

reference books were reassembled and reprinted in

2002 (17 tons of them) but have not yet been dis-

tributed to each courthouse. Lawyers are in short

supply as are law enforcement officers and other

paralegal professionals around a courthouse. In

such a situation, in faraway villages or less accessi-

ble provincial towns the population in general and

women in particular have difficulty reaching a

court.

Bibliography

N. Gross, Steps of peace and our responsibility as Afghans

[in Dari], Falls Church, Va. 2000.

Nasrine Gross

Arab States

Until the 1970s, scholarship neglected the ques-

tion of how women might have fared in premodern

legal systems. This was due to lack of archival

sources, but also to scholars’ basic assumption that

the discriminatory provisions of Islamic law as

found in legal text books (mu†ùn) would predeter-

mine how women fared in legal systems. When

Ottoman archival sources became more widely

accessible in the 1970s and 1980s, scholars discov-

ered that women of all walks of life fared better

than expected in Ottoman courts. In contrast, the

selective codification of Islamic law, the bureaucra-

tization of procedures, and the patriarchal nature

of modern state institutions appear to have limited

women’s access to colonial and postcolonial courts.

Contemporary legal systems in the Arab states

are diverse, ranging from systems based on selective

combinations of Islamic legal concepts with French