Legal Pluralism of Domestic Violence: the Case of Legalizes A Man Hit His Wife in Afganistan

I. Introductory Remarks

Legal pluralism is everywhere. There is, in every social arena one examines, a seeming multiplicity of legal orders, such as customary law, indigenous law, religious law, or law connected to distinct ethnic or cultural groups within a society.[2]

On February 2014, Afghanistan effectively legalizes domestic violence with new law that bans anyone from testifying against relatives. The law has been passed by parliament but is waiting to be officially signed off by the president Hamid Karzai.[3] Generally, that law will allow men to attack their wives, children and sisters without the fear of punishment; it will ban relatives of the accused from bringing evidence against them; those who carry out honor killings would be impossible to prosecute; domestic abuse is still rife and forced marriages are the norm.

To be underlined, violence against women in Afghanistan is rooted in Afghan culture, customs, attitudes, and practices. Violence linked to culture was the main reason for a 20 percent rise in deaths and injuries of females in Afghanistan.[4] Moreover, Afghan women have limited freedom to escape the norms and traditions that dictate a subservient status for females.[5]

Furthermore, for overwhelming majority of Afghans, Islam is a central component of identity and Islamic laws are a central element of this Islamic identity. Religious law has considerable and growing influence in the areas of family law, inheritance, criminal law and individual rights.

According to legal pluralism of Tamanaha, pluralism is in fact showed there is diversity among multiplicity of legal orders may impose conflicting demands or norms. Those diversity have different style and orientations.  Thus, Afghan’s women culture, the strong of historical Islamic law in Afghanistan, and international human rights, multiplicity of legal orders which can not be separated when we talking about legalizes domestic violence in Afghanistan.

Against those backgrounds, analyzing in the case of “legalizes domestic violence in Afghanistan”this study will use three different perspectives: theology (Islamic law), legal (human rights law), and socio-culture of Afghanistan.

II.    Research Question

Based on the background above, author formulates the following problem: How is legalizes  of violence against women in Afghanistan in the context of legal pluralism?

III. Research Method

The type of this study is classified into types of normative legal research. According to Soerjono Soekanto, one of methods in legal research is  normative legal research, which studies law as a norm.[6] A legal research is conducted in order to produce an argumentation, a theory, or a legal concept as a prescription in solving a legal problem.[7] Since the type of method is normative legal research, then the type of law materials which prevalent used are: Premier Law materials; Materials-materials secondary legal; Materials-legal materials tertiary.[8] The analysis of data that has been collected is analyzed with the qualitative descriptive method that means data is descriptively presented and qualitatively analyzed. [9]

IV. Domestic Violence as a Human Rights Issue

Research at the national and international level has consistently shown that  domestic violence is gender specific violence that discriminates against women  and seriously inhibits women’s ability to enjoy their rights on an equal basis with men.[10

Gender-based violence is an umbrella term describing any harm perpetrated against a person that results from unequal power relationships determined by social roles ascribed to males and females. Violence may take many forms but, around the world, it affects women and girls disproportionately because of their subordinate status vis-a-vis men and boys.[11]

A wide range of violence is now recognized as a crime: physical, psychological, sexual, economic, and sexual harassment. The definition of each type of violence is so broad that it accommodates the various forms of miseries suffered by women or children in the family.

At any stage, domestic violence and/or gender-based violence, referring to the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), government is the actor who bearable provide a law to protect women from domestic violence and ensure these laws are enforced, as well as taking measures to safeguard the dignity and integrity of women.

V.          Sharia Perspective: Does Islam allow a man to hit his wife?

Sharia Law

What is Sharia law?Sharia law is the law of Islam. Sharia law comes from a combination of two primary sources of Islamic law, the Quran (the holy books), and the actions and words of Islamic prophet Muhammad (sunnah and hadith).[12]Hence Sharia covers not only religious rituals, but many aspects of day-to-day life, politics, economics, banking, business or contract law, and social issues.

In the Islamic intellectual tradition, the interpretation of Qur’anic verses and hadiths is widely known as fiqh, an intellectual product of Muslim jurists, which cannot be disassociated from their socio-cultural context and which, simultaneously, is a judicial response to the legal problems in the then real life. Culture is, therefore, influential in shaping the character and nature of fiqh. In addition, the process of fiqh formation may have some political elements, associated with the interest of its jurists or those in power at that time.[13]

In Afghanistan, Islam is a central component of identity and Islamic laws are a central element of this Islamic identity. Religious law has considerable and growing influence in the areas of family law, inheritance, criminal law and individual rights[14]. Thus, sharia and fiqh is play important role in existence of law for women of Afghanistan.

Simple put, Does A Man Allow to Hit His Wife?

According to most interpretations, authorization for the husband to physically beat disobedient wives is given in the Quran. First, admonishment is verbal, and secondly a period of refraining from intimate relations. Finally, if the husband deems the situation appropriate, he may hit her:

Q.R. Al-Nisa: 34

“Men are the maintainers of women because Allah has made some of them to excel others and because they spend out of their property; the good women are therefore obedient, guarding the unseen as Allah has guarded; and (as to) those on whose part you fear desertion, admonish them, and leave them alone in the sleeping-places and beat them; then if they obey you, do not seek a way against them; surely Allah is High, Great”

Another significant text in the Quran clarifying the allowance to hit a women through the story of prophet Ayub:

“And take in your hand a bundle of thin grass and strike therewith (your wife), and break not your oath. Truly We found him patient…” (Q.S. Sad [38]:44)

In summary story of the text above is when Ayub’s wife abandoned him, Ayub vowed that if he recovered later from his disease, he would hit his wife 100 times. He did it. He take a bundle of reeds, bunch them togethers as one and then hit her wife only once. This one hit was considered one hundred, thus he could fulfill his oath this way.[15]

Concurrently, as explained above that the source of Sharia is originated from the holy books of Quran and Sunna. Therefore, to understanding of Islam as a total system, we have to know the Sunna about ‘hit a women’:

Narrated Mu’awiyah ibn Haydah: “I said: Apostle of Allah, how should we approach our wives and how should we leave them? He replied: Approach your tilth when or how you will, give her (your wife) food when you take food, clothe when you clothe yourself, do not revile her face, and do not beat her. (Sunan Abu-Dawud, Book 11, Marriage Book, Number 2138)”

Therefore, one can conclude that Islam established the restriction of ‘hit a women’, then, it does not deviated from its original purpose as to repair, straighten, and educate. Nor for revenge, demeaning, or humiliating a women. Hence, for the hit method, it must be not hard punch and beyond the limit or bound.[16]

Afghanistan Culture

A historical view of women’s situation in Afghanistan reveals that women have rarely been a part of political, social and economic decision-making processes. During the Taliban period, which was infamous for its brutality, extremism and misogyny, women were subject to gender crimes and sexual violence.[17]

Afghanistan’s entrenched traditional and customary practices constitute one of the strongest sources of violence. Afghanistan’s dominant traditions have caused women to perceive unequal family and societal relationships as a natural and immutable condition and prevent them from reporting on-going violence to the relevant authorities.Many girls and women are not willing to report violence against them in the family and society to the police and other relevant authorities. The entirety of violence in the family and society is therefore higher then portrayed in the report.[18] Thus, until today women in Afghanistan cannot express themselves freely, particularly when their actions are deemed to conflict with traditional practices.[19]

VI. Conclusion: Overcoming the Global Legal Pluralism in the Violence Against Women in Afghanistan

The existence of religious law and culture in the case of violence against women in Afghanistan could be seen as fact of legal pluralism as mentioned by Tamanaha:

“….In each social arena, particular official legal systems and normative systems must be examined on their own terms to see what their relations with other normative systems are, to observe their respective capacities to exert power, and to see how they are being utilized or responded to by individuals and groups…”[20]

However, since the globalization era, violence against women policy can not be separated from the international policy. National law of Afghanistan, deep culture, religious law, human rights and international law brought new different perspective the provision of women itself. Therefore,  the high tension of conflict among those different system described as:

What makes this pluralism noteworthy is not merely the fact that there are multiple uncoordinated, coexisting or overlapping bodies of law, but that there is diversity amongst them. They may make competing claims of authority; they may impose conflicting demands or norms; they may have different styles and orientations.[21]

Then, what actually should be seen as a key factor to forcing the implementation of CEDAW which is ratified by Afghanistan without any reservation on 2003. Debating that, legalized of domestic violence against women is not suitable with the human rights in any kind of legal system. Thus, there must be a party which can forcing the Afghanistan government to reconsider the implementation of  domestic violence law. Nevertheless, shaping the legal pluralism as the basis of human identity to protect those Afghanistan’s women should consider the social component of human existence in Afghanistan’s society.

The fact showed that enforcement of the EVAW law by the Afghan National Police (ANP) is more difficult to assess than by the prosecution and courts. Registration of cases of violence against women by police is not consistent, and usually does not correspond precisely to crimes defined in the EVAW law; cases are recorded as “domestic violence,” or “family dispute,” for instance and many cases are not recorded at all. The majority of cases of violence against women reported to police and prosecution offices were processed outside the formal justice system—through mediation, withdrawal of complaints, and by elders in traditional dispute resolution mechanisms.[22]

The scholars need to think a lot about what shall we can do to help these women in their own country. Remembering that there is no supporting party from Afghanistan government and strong principle of ‘no intervention’ in the international society. What make it possible is, having reached such a deep rote combination of Afghan’s culture and religious law about women in Afghanistan. Logically, before speaking about ‘law’, we have to gathering the grass root society itself through raising awareness in society, particularly amongst religious and community leaders, about women’s rights in the case of violence against women.

Thus, in the legal framework, we have to start shaping a regulation in purpose to reform laws and policies to ensure that all rights are protected equally for women and men based on pluralism between afghan’s culture (I prefer to use ‘custom’), religious law (sharia), and international law.


[1] Mahasiswa Magister Ilmu Hukum 2012, Universitas Gadjah Mada, Kluster Hukum Internasional.

[2]Understanding Legal Pluralism: Past to Present, Local to Global, Brian Z Tamanaha, Sydney Law Review, pg.375

[3] http://www.dailymail.co.uk/news/article-2552084/Afghanistan-effectively-legalises-domestic-violence-new-law-bans-testifying-against-relatives.html

[4]U.N. blames rise in violence against Afghan women on culture, http://www.reuters.com/article/2013/03/18/us-afghanistan-women-un-idUSBRE92H0ZJ20130318

[5]Silence Is Violence, End the Abuse of Women in Afghanistan, 2009, UNAMA, OHCHR, pg.1-3

[6]  Soerjono Soekanto and Sri Mamuji, Metode Penelitian Normatif, Rajawali, 1995, page 2.

[7]Ibid

[8] Soerjono Soekanto dan Sri Mamudji, 2006, Penelitian Hukum Normatif; Suatu Tujuan Singkat, PT. Raja Grafindo Persada, Jakarta, page 22-23

[9]Ibid, page 65

[10] For more information on the United Nations Convention on the Elimination of all Forms of Discrimination on  Women (CEDAW) and the General Recommendations made by the CEDAW Committee see

http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.html, read Ending Domestic Abuse  Rights of Women’s Position Statement on Domestic Violence,

[11] Jeanne Ward, Report of a Preliminary Assessment of Gender-based Violence in Rumbek, Aweils (East and West), and Rashad County, Nuba Mountains (United States Agency for International Development, 2005),

p. 3., Gender-Based Violence In Aceh, Indonesia A Case Study, United Nations Population Fund (UNFPA), 2005

[12]Maqashid al-Syari’ah dan Penerapan Hak Asasi Manusia dalam Masyarakat Islam, Ramin Abd. Wahid, pg.126-127

[13]Ibid

[14] Rosen, L. (2000), The Justice of Islam, New York, Oxford University Press, pp. 80–82, 168–69.  M.H. Hasrat and Alexandra Pfefferle, 2002, Violence Against Women In Afghanistan, Afghanistan Independent Human Rights Commission, pg.11-12

[15]http://www.islamicstories.com,  on 9 February 2014

[16]Tafsir Nemune, jil. 3, hal. 415, silahkan lihat, Jawaban No. 1433 (Site: 990), Makna IdhribuhunnaTafsir Nur al-Tsaqalain, jil. 1, hal. 478. “Mengapa al-Quran menjelaskan bahwa Anda (suami) dapat memukul wanita (istri) Anda?”, http://www.islamquest.net/

[17]Op. Cit, Violence Against Women In Afghanistan, pg.12

[18] Ibid

[19] Read Silence Is Violence, End the Abuse  of Women in Afghanistan, 2009, OHCHR and UNAMA, pg.13-15

[20]Op.Cit, Tamanaha, hlm.410-411

[21]Ibid, hlm. 375

[22] Read A Long Way to Go: Implementation of the Elimination of Violence against Women Law in Afghanistan, pg.7-21

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