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Wednesday, April 27, 2005

The Fighting Faith of Liberalism?

Thanks to Jack at CrimProf for linking to this article , describing the first stoning of a woman in Afghanistan for adultery since the "fall" of the Taliban. 

The article notes:

Adultery is forbidden in the Muslim country and under Islamic sharia law the penalty can range from flogging to stoning to death.

Several women and men were given such punishments in Badakhshan, a remote northeastern province, during the government of the Mujahideen (holy warriors) in the 1990s.

The practice became common during the rule of hardline Taliban who controlled most of Afghanistan till late 2001 when they were ousted from power by U.S.-led forces.

A witness, Mujibur Rahman, told Reuters that [the stonee] Amina was dragged out of her parent's house by local officials and her husband who stoned her to death while the man was flogged, whipped 100 times and then freed.

I was biting at the chomp to get blustery about why this is atrocious.  But I want to try to figure out what's the underlying wrong here, at least from liberal principles. 

First, theocratic principles (whether sharia, halakha, canon law) are not principles that states should uncritically apply, and thus, the fact that sharia dictates stoning for adultery is insufficient as a reason for the state to do it.  But that goes to the conduct prohibited.  The second point goes to the method of punishment.  Stoning and whipping violate liberal principles that a) punishment should be consonant with human dignity rather than evidence of its denigration, ie., not cruel as measured against our best understanding of what that means; b) punishment should not be more severe than is necessary to condemn the severity of the crime's wrongness.  The second point however raises the question of how wrong, if at all, adultery is.

The correctness of a ban on adultery is a more complex question, I think, though I recognize that I may be an outlier (among readers here? everywhere?) in thinking this.  It doesn't seem illiberal to ban adultery in the same way that it does to ban gay sex, because there are often third party harms in the former and even where there are not, democratic states may have a compelling interest in protecting the sanctity of marriage as the consecration of vows between two individuals who take on a commitment to each other (and I assume without arguing that permitting gay marriage is normatively correct because the social recognition of marriage should not be deprived on the basis of sexual orientation).

Of course there are many good reasons to not criminalize adultery (especially as against the opportunity cost of not enforcing other more pressing crimes,) and perhaps it should remain something that we penalize through measures not involving the state: social shunning for example.  But I suppose liberalism should be able to accomodate a democratic law that wishes to outlaw adultery.  Am I wrong on this issue?

How about the others?  Can one claim to be a liberal and still support, under the rubric of liberal-communitarianism, a right for other societies to engage in a practice that allows women (or men for that matter) to be stoned for adultery?

Also, without knowing more about what happened than what the article said, I wonder whether we're particularly worried because it was a woman who got stoned, while the male adulterer got a 100 lashes and was then freed.  Would it matter if the genders were reversed?

Assuming it is consensual sex, how important is it for moral (or normatively legal) purposes that both persons know that at least one of them is in a marriage (strict liability or negligence or IT)? Should the presence of children matter in our moral assessment?  Can a couple morally agree to swing in a liberal state?  Can a liberal state prohibit swingers, even if it decides not to spend a lot of time prosecuting it?

I should note that one of the reasons why I wanted to post on this issue is to highlight for liberals that much as we want to be tolerant, there are certain things we ought not witness and stand by idly.  We have not spent a lot of time addressing foreign policy issues on this blog, largely for reasons of institutional competence, but I don't think we can shirk our moral obligations of outrage.  Putting an end to cruelty first, to paraphrase Dita Shklar's phrase, is a good starting point to unite the center-left, and I submit that preventing the subjugation of women abroad (whether through stoning or sex-trafficking) is and ought to be at the forefront of any decent foreign policy.  We should take note that the neocons have been at least as alert to this as anyone else.  And we need more Nick Kristoffs, one of the few MSM pundits to highlight these issues with clarity and fervor.

Update: I meant to include a link to Beinart's piece with a similar title from a few months ago.

Posted by Dan Markel on April 27, 2005 at 02:10 PM in Law and Politics | Permalink

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Comments

Let me be a contrarian here for a moment, Dan. The story reports that the woman was stoned, and the man was whipped 100 times. That report, standing alone, doesn't seem like particularly strong support for your argument that this is an example of "the subjugation of women abroad" -- precisely because we don't really know the facts.

Perhaps there is a general rule that women get stoned and men get whipped. If that's the case, then that would certainly be a pretty convincing piece of evidence. But we don't know that. And the fact that one woman was punished worse than one man (though 100 lashes is a pretty harsh punishment) in one particular case -- I don't think that does the lifting you're asking it to, Dan. After all, we can't be sure that the woman wasn't, for example, a repeat offender found guilty of harsher punishment due to that fact.

Posted by: Kaimi | Apr 27, 2005 3:41:41 PM

Before looking down the nose at other cultures, consider the purpose of the harsh penalty may be to send a message to the rest of the village. Don't always lunge at the obvious.

Does such a message have any value under those environmental circumstances?

Then, except in the rare stranger rape, which gender controls male-female relationship, even in the most extreme patriarchical society? Who holds all the hostages, called children? Who is the real boss of us, even as adults?

Tell me if you want more hints.

Then, walk outside in any American town, at midnight. See those little kids running around unsupervised? Lawyers did that. Return to class. Now. Let's hear your criticism of this village.

Managing crime is a strength of Islam. I am not a Muslim, before people get personal here, yet again.

Posted by: David Behar | Apr 27, 2005 4:45:44 PM

Kaimi,
I wasn't relying on the article as evidence of the breadth of subjugation of women, just as evidence of the subjugation of women; I think one can easily muster support for the notion that women are subjugated in despicable ways widely around the world, and sadly, in particularly horrible ways in the developing world. I think this point can be "judicially noticed," but if you wanted more, I could probably spend 12 seconds on google to find it.
David, I think you're missing my point. I think what you're saying is, this message of stoning and flogging is an effective deterrent to crime, and therefore is not something we should condemn. To be sure, crime control is important, and "Islamic crime control" methods may be effective at reducing crimes and sending messages of deterrence (leaving aside whether this stoning and flogging really constitute a fair interpretation of Islamic practice). But if all we wanted was to deter crime, with no concern for preserving autonomy and freedom, there would be no need to take specific recourse to Islam to forcefully reduce crime. For example, we could execute every criminal regardless of the crime. Or less extremely, if we simply wanted to reduce sexual crimes we could force men to turn over some sperm to the national sperm bank, and then castrate them all, which would permit procreation and at the same time do a lot to reduce some if not all acts of sexual violence. Nothing in Islam that I know of requires such measures, but there's something to those solutions, just as there is with "Islamist crime control" that undermine basic liberal commitments to freedom and autonomy.

Moreover, the Islam manages crime line of thinking does not really address the other questions I raised: specifically, whether adultery is properly the object of criminal sanction, and if so, by what method of punishment, such that a liberal state could endorse the prohibition and the punishment of adultery.
As to your speculations about who "controls us" as adults, I will leave those to the therapists reading the blog...but I think the answer is less obvious than you suggest.

Posted by: Dan Markel | Apr 27, 2005 11:04:51 PM

Dan: Perhaps, I misunderstand. You are indicating some intentional setting of the crime rate, a careful tuning? You know how to set it to zero, by the measures you mentioned. For policy, and cultural tastes, it is set higher than zero. If this is provable, it is a kind of smoking gun, if ever openly said by a responsible individual, such as a legislator, or an appellate justice.

One problem with the current setting is that it allows too many crime victimizations in the US. Crime reduces our economic productivity many ways, affects us all. These rates are racially and economically skewed. Any tuning, any skewing by state action may intentionally violate Equal Protection of the victims.

One of the problems the victims have is that they are invisible to the justice system, paying no fees, and having no choice about handing over their taxes. Take current victimization surveys, let's say 1 million crimes in a city, each year. Keep everyone's salary in the justice system where it is now. Then add a bonus equal to the drop in the victimization rate. "Drop the independently assessed rate, we pay extra." That does not bias against individual defendants. It rewards performance that the public wants. As a judge, I know the most productive sentences, taking out of circulation the busiest of the busiest, and that will end a crime wave. I divert the harmless, because I need the prison beds for the most dangerous. As a judge, I manage the crime rate, being in the best position, and entrusted to by the public. All the incentives are in the right direction, without change in law or constitutional rights. This is the way the victim could speak to the justice system, by giving it tips for good service.

Claus indicated Blackstone must have lived in a good neighborhood when he said, Better 10 guilty men go free, than 1 innocent man be imprisoned.

Oh, no! There are 2 of them? And one is using math.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=11412

One other thing. All members of the justice system should be made to live in the highest crime areas, wherever that is, that year. The rent can be a free perk.

One risk is that all parties may love it. No rules. No enforcement of the law. Just don't get your crime in the face of passing police officers, offending their pride. Those areas are lifestyle communities, as one chooses between golf vs marina lifestyles. Then, one does what one wants. As to economics, everyone in the worst such neighborhood in the US has 10 times the buying power as the middle class of that village.

People are also aghast at the idea of correcting an unfortunate reversal that took place. Strict liability belongs in criminal law, and legality belongs in torts. You implied, with irony and sarcasm, support for that idea as effective in your death penalty remark. I like the logic, effectiveness, the justice of it.

One may find an Islamic criminal law hornbook here. It is simple, elegant, covers the necessities, is also easy to understand.

http://www.amazon.com/exec/obidos/tg/detail/-/0915957728/qid=1114661059/sr=8-1/ref=pd_csp_1/103-2277603-7563853?v=glance&s=books&n=507846


I do not look down on the dated content of this. I read the criminal law and procedure parts. It covers many other areas of law and procedure, estates, divorce, property. They are anti-tax. They are anti-government worker, "... all bear the sin, and are eating of the ill-goten wealth."


The penalty is found at o12.2. There are elements to satisfy, puberty, sane, voluntarily. Why one of these could not have been used by a clever lawyer, I don't know.

You and I share religious backgrounds, obviously, but I do not dismiss this traditional text.


Posted by: David Behar | Apr 28, 2005 12:22:34 AM

David, there's no question that governments can do more to reduce crime, so I don't think it's even got the status of an "open" secret or a dirty secret. Our government is reasonably committed to balancing freedom and responsibility. There's also a difference between intentionally bringing about results and having results that are foreseeable from certain actions, but not the intended results of those actions. People may reasonably disagree over whether that distinction should attach to the actions and inactions of the government.
And for the record, there was no irony or sarcasm in my question about whether culpability of an offender of a possible adultery statute should be tied to mens rea as reflected through a tort perspective. Those questions were raised in earnest.

Posted by: Dan Markel | Apr 28, 2005 8:16:43 PM

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