Legal reform or erasure of history? The politics of moral crimes in Afghanistan

Abstract

In this article we reflect on our efforts to study the prosecution of moral crimes in Afghanistan. In the process of collating information about men and women imprisoned for moral crimes such as adultery, we found evidence that pointed to large-scale incarceration of men for the uncodified crime of elopement. After establishing this fact through a careful review of official data, the article considers two interrelated themes. First, we argue that government attempts to conceal its extralegal practices cannot be reduced to the question of a corrupt bureaucracy or weak governance. Rather, they reflect a fundamental tension between a modern state’s interest in projecting the rule of (codified) law and societal expectations arising from both Islamic and customary law. Second, we suggest that officials seek to address this conceptual tension between the different bodies of law through a complex process involving both accommodation and concealment. In day-to-day judicial practice, ‘assimilation’ refers to attempts to rely on sharia provisions to accommodate customary practices which have no counterpart in statutory law. ‘Dissimulation’ refers to bureaucratic actions aimed at concealing the actual practices which make such extralegal accommodations possible.