Vulnerable Forms of Law
“The safety of the people will be the highest law.” (Marcus Tullius Cicero) We are told laws are
in place to help us, yet some do the opposite. In some countries around the world, the laws systems in
place do not prioritize safety, often putting the most vulnerable in danger. They evoke fear and do not
value equity for all citizens. A law system with these values is setting a country up for corruption and
mistreatment of its citizens. Furthermore, forms of law that are not codified, specifically jirgas and
Sharia Law, are more vulnerable to corruption.
In these corrupt legal systems, laws are often overridden or ignored by tribal customs. The Jirga
is a form of tribal council where religious leaders and elders make decisions by consensus. Jirga rulings
are unofficially above the law, because the law is often not considered when the elders and religious
leaders make decisions. The rulings of a jirga are not to be challenged, furthermore, people do not know
how to question it because they are not familiar or aware of their rights. Because of these problems,
many jirgas have completely infringed on people’s human rights. Take the story of Sahar Gill, from the
podcast “How I Defend the Law” (Kimberley Motley).i She was sold by brother to her neighbor at a jirga
in Afghanistan. She was 12 years old. Her fiancé and his family tried to force her into prostitution and
when she refused, they brutally tortured her. When Sahar talked to Kimberly Motley, her lawyer, she
stated that she did know what her rights were, but she knew that she had protection from the
government, and it failed her. In Afghanistan, where this had taken place, there are rights and laws in
place to protect people, like Sahar had said. Yet they were completely disregarded in this situation. In
the Afghan Constitution, Article 23 states that every citizen has the right to life, and no one will be
deprived of it.ii Clearly Sahar’s right to life was violated as she almost died. When her case was taken to
courts, she sued for civil damages using a law that has never been used before. This fact shows that the
people not knowing their laws, therefore them not using them has created a system where the law is
overlooked. This case is even more significant because it was the first time a victim of domestic violence
was represented in an Afghanistan court by a lawyer, and it was successful. Her in-laws were jailed, and
her brother was punished. Sahar Gill is a victim to the corruption in her legal system, yet she was able to
find justice. This case shows the corruption that is possible in the Afghanistan legal system as well as
showing how the laws put in place got Sahar the justice she deserved. It is not the laws or jirgas that are
corrupt, but the lack of respect and recognition of them from people with power. Jirga rulings do not
always infringe on the law, but it is the fact that they could that is corrupt. The Afghanistan legal system
has good laws for its people, but the unpredictability of the uncodified forms of legal action, such as
jirgas, is what makes it vulnerable for corruption.
Some countries have a law system that is blended between religious and western legal aspects.
Sharia is a set of rules and values for people of the Islam faith. It is interpreted in many ways, sometimes
becoming a set of Islamic laws for countries. Many Muslim countries use Islamic Law for family matters
and Western Law for other matters.iii This creates an imbalance because some religious practices
infringe on the rights set out for citizens by the Western Law. Sharia Law is often interpreted in a way
that puts a lot of people, specifically women, in danger. This brings up the issue of Female Genital
Cutting or Circumcision, a religious practice that often occurs in Muslim countries. According to
“tandfonline”,the practice can range from moderate, removing the top of the clitoris with a razor, to
severe, cutting the clitoris out entirely. iv This violates many of a women’s human rights. It is extremely
painful and can cause health concerns. If the cutting is severe it can even cause death if it does not heal
properly which violates a women’s right to life, (Article 23 in the Afghanistan Constitution.) This practice
also demeans women because removes or damaging the clitoris removes the pleasure a woman gets
during intercourse. It essentially leaves the woman as just a babymaker. It evokes the idea that all
women are needed for is to make children. This is not only sexist and false; it violates Article 22 in the
Afghanistan Constitution. The right for everyone to be equal under the law, man or woman. Clearly this
practice violated the rights of a woman in multiple ways. Sharia Law can be in favor of the practice or
against it depending on how it is read. The corruption in the Sharia Law system lies in the fact that it can
be interpreted in ways that contradict the human rights set out by the government. The law cannot
successfully enforce rules and protect people if the laws set out do not send out the same message.
These gaps and colliding laws in uncodified systems are what make them corrupt.
Forms of Law that are not codified, specifically Jirgas and Sharia Law, are more vulnerable to
corruption. Neither of these forms of laws are corrupt but they can easily be used in corrupt ways. The
dynamic between religious and tribal customs and the legal systems of countries is broken because they
are seen as above or contradict the law. These unbalanced and inconsistent forms of law endanger the
people they are meant to protect, especially women and children. Therefore, both Jirgas and Sharia Law
are more vulnerable to corruption because they are unpredictable, often do not respect the law and do
not have safety for all as the main priority. If both Jirgas and Sharia Law could respect and coexist with
the law, without contradicting or ignoring it, vulnerable individuals would be better protected, and
Marcus Cicero’s words would ring true.
i
Motley, Kimberley. “How I Defend the Rule of Law.” TED, TEDGlobal, 2014,
www.ted.com/talks/kimberley_motley_how_i_defend_the_rule_of_law/discussion.
ii
Advocates, Kakar. “Afghan Laws & Regulations.” Kakar Advocates Law Firm LLC, 31 May 2020,
www.kakaradvocates.com/afghan-laws-regulations/
iii
An-Nai’m, Abdullahi Ahmed. “Sharia Law.” Muslims for Progressive Values, 2019, www.mpvusa.org/sharia-law
iv
Wodon, Quentin. “Islamic Law, Women's Rights, and State Law: The Cases of Female Genital Cutting and Child
Marriage.” Taylor & Francis, 2015, www.tandfonline.com/doi/full/10.1080/15570274.2015.1075762