Disclaimer: This is by no means intended to be a defense of honour killings, but an exposition on the legalistic history of honour killings as is presented in Islamic and non-Islamic jurisprudence.

Unfortunately, the term ‘honour killing‘ has become synonymous with ‘Muslim’ culture. Yet, its roots run far deeper in European culture, than it does in the other traditions. I will attempt to be as objective as I can in exploring the numerous historical and contemporary scholastic sources that I have based this exposition upon. It is my intention to clarify the position of honour killings within Islamic judicial thought, while simultaneously elucidating the masses, particularly European on its role and status within their own legal traditions.

The European Source

Roman society at one point in time functioned on the socio-cultural institution known as pater familias, commonly translated as “father of the family“. In this tradition, the father is seen as the head of the household, the person with the most authority. While for most this seems acceptable, the legalistic implications of this in Roman law are far more ghastly than what meets the eye, we read from, “A Casebook on Roman Family Law“, the following [1]:

• the pater familias, male head of the household, sole owner of all property belonging to the household, and endowed by law with considerable power over all his descendants through the male line no matter their age;

• his wife, joined to him by astonishingly fragile bonds of matrimony but sharing with him neither in the control nor in the ultimate disposition of the household’s wealth except as concerns her own property and her dowry (a fund that is, however, managed largely at his discretion so long as the marriage lasts);

• and his descendants, captured within a household structure that allows them little true social or economic independence until they are finally freed from his mastery not by their own adulthood but by his death.

The book goes on to state [2]:

Two features of Roman family law may particularly surprise a contemporary viewer. First, this law reflects the values of a world still largely dominated by males, in which, therefore, the public role of adult women is considerably restricted by custom and by law (see especially Cases 228–235). Much of this male domination is emphatically reinforced within family law, where, in the centuries just before the classical era, the Romans had actually moved from an “archaic” model of marriage in which the wife was a full member of the household (albeit in principle subordinated to her husband, Cases 37–40) to a “classical” model in which the wife’s presence is legally so tenuous that she seems at times only to be tolerated as an unavoidable prerequisite for the bearing and raising of children.

With this patriarchal  concept in mind, we find the first justification for an honour killing in Roman legalistic tradition, some 300 to 400 years before the advent of the Islamic Prophet Muhammad (peace be upon him) [3]:

The Emperor Marcus Aurelius and his son Commodus (coreign: A.D. 175–180) sent this rescript: “If a husband, borne on a flood of anger, kills his wife whom he catches in adultery, he will at least not receive the penalty of the lex Cornelia on murderers.” For the deified Emperor Antoninus Pius (reign: A.D. 138–161) sent a rescript to Apollonius, as follows: “When a man does not deny that he killed his wife whom he caught in adultery, capital punishment can be remitted, since it is very hard to restrain legitimate anger, and his punishment should result from his doing more (than he should have) rather than from his having no duty to take revenge. So it will suffice, if he is of modest rank, that he be handed over to a life of hard labor; and if of more respectable rank, that he be relegated to an island.”

From this, we can clearly see that the tradition of legalizing honour killings was founded upon European Roman laws, particularly those known as Lex Iulia.

The French Connection

Before the French Revolution occurred, the Southern territory of France followed droit écrit, essentially the Roman Written Law. We now read from the Napoleon Series’, “The Civil Code: An Overview“, as it describes to us how the Roman Law (Lex Iulia) became part and parcel of the French Civil Code [4]:

On 24 thermidor, an VIII (13 August 1800) Napoleon, after consulting with Jean-Baptiste Champagny, appointed a commission to prepare a draft of a uniform civil code for France. Napoleon saw a new code not only as a legal necessity, but a means of consolidating the new regime and as an instrument of reconciliation.  A code, Napoleon stated, which every man could read and understand, would enable every citizen to know “the principles of his conduct.”  The commission consisted of François-Denis Tronchet, known as the “Nestor of the Aristocracy,” 73, president of the Court of Cassation. Tronchet, who had had a long legal career practicing before the Paris Parlement and had been one of Louis XVI’s legal defenders, was an advocate of the Northern customary law.  Napoleon called Tronchet the “soul” of the debates in the Council of State. Jean-Étienne-Marie Portalis, nearly blind, 54, a Provençal from Aix, a commissioner on the Prize Court. Portalis was the “philosopher” of the commission.  He was a champion of the Roman law and a loyal Catholic.  Of Portalis Napoleon said, “Portalis would be the most eloquent of speakers if he only knew when to stop.” Tronchet and Portalis are credited as the principal authors of the Code.  Félix-Julien-Jean Bigot de Préameneu, 52, of Rennes, a commissioner in the Court of Cassation, was a defender of the customary law. Jacques Maleville, 58, a lawyer of Bordeaux, judge of the Court of Cassation.  Maleville was a champion of the Southern Roman law.

Sadly, the tradition of “honour killings” was carried over into the French Civil Code [5]:

Following the tradition of Roman law, a woman found guilty of adultery could be imprisoned for between 3 months and 2 years depending on the inclination of the husband.  A husband convicted of adultery (a husband had to introduce the mistress into the home to meet the requirement of adultery) was only subject to a fine of from 100 to 2,000 francs.  A man who, in a fit of passion, murdered his spouse in flagrante delicto was guilty of no crime.  A woman in the same situation was subject to the rigors of the law.

In French, it is commonly known as crime passionel  or “crimes of passion”. The man was excused for the murder of an infidel (unfaithful) woman if he killed her in a fit of rage, known as in flagrante delicto or ‘at the moment’ of witnessing her infidelity. Less than 100 years after such a law was instituted (the excusing of crimes of passion), one French Statistician citing its prevalence had this to say [6]:

In 1894, a top statistician from the French Ministry of Justice published a report that exposed a shocking increase in the rate of acquittal for cases tried by jury in French assize courts. Emile Yvernes reported that acquittals for serious assault (coups et blessures graves) rose from 27% to 78% between 1860 and 1890, acquittals for murder grew from 15% to 34%, and the rate of acquittal for homicide increased from 16% to 24%. By contrast, acquittals in crimes against property rose only slightly during the same period, from 17% to 19%. Like many of his peers, Yvernes was particularly worried by the high rate of acquittal for so-called “crimes of passion” committed between lovers or spouses. He contended that “these misdeeds, often inspired by passion, hate, or vengeance, more and more often find with the jury not only indulgence, but absolution.”

A great read on the public fixation of enjoying crime passionel can be viewed here, “Crime Passionel in French Courts” by Robert Ferrari (California Law Review – 1918 – UC Berkeley School of Law).

The Introduction of the French Civil Code into the Islamic World

We first find the application of the French Civil Code being mimicked in Ottoman era laws in 1858. That is some 48 years after its formal introduction into the French Civil Code in 1810. Amira El Azhary Sonbol states in her book, “Beyond the Exotic Woman“, the following [7]:

Similar clauses are found in the Ottoman Penal Code of 1858 and the French Penal Code of 1810. It is important to stress that these clauses are found in the civil codes of several Mediterranean countries and are not particular to the Middle East. A more specific modern example is the implementation of French civil codes in Egypt that resulted in the application of these same (French) laws condoning crimes of passion. “By exception, the individual who has surprised his spouse in the obvious act of adultery and slain her in that manner, his participation is declared excusable by article 201 and punishable with imprisonment in place of criminal penalties for murder and the wound and injuries having willingly caused the death without the intention to do so.”

Egypt’s law was not only based on French Civil Code, but the judiciary’s method and power of prosecutions is also based on the French Parquet system known in Arabic as niyaba [8]:

“An institution based on the French parquet system in which judicial personnel have responsibility for investigating and presenting criminal cases to courts; the niyaba system was adopted first in Egypt and later emulated in many other Arab countries.”

Due to the European influence of legal modernization in the Muslim world, the Tribunaux Mixte d’Egypte or the Mixed Courts of Egypt popularized the influence of the French Penal Code. This can be seen with the  Kingdom of Jordan instituting a similar law to crime passionel committed in flagrante delicto, as in 1960 with the Jordanian Penal Code, #16, article 340 which contains a clause for ‘excuse in murder’ wherein the murderer is ‘exempt from any penalty’.

Islamic Scholarship on “Honour Killings”

The most important question we can ask ourselves is, does the Islamic faith justify honour killings? To answer this question, we quote an Islamic jurist’s exposition on the issue [9]:

In the name of Allāh, Most Gracious, Most Merciful
Assalāmu ῾alaykum wa Rahmatullāhi Wabarakātuh
Islam does not give permission to any individual to kill a family or clan member based on his belief that the victim brought dishonour upon the family, clan, or community. Only the Islamic Court can carry out the punishments (hudood) set out by the Shariah. (See: Shaami 6/104, Darul Ma’rifa)

If someone’s family member does an act contrary to the teachings of Islam, then it is his responsibility to amicably stop the person from violating the injunctions of the Shariah and to advise him/her.

A person who accuses another of committing adultery and cannot bring four witnesses who clearly saw the act taking place, is guilty of falsely accusing someone of adultery, the punishment for which is being flogged with eighty stripes. (This punishment, too, is to be carried out by the Court).

Allah, the Exalted, says:

Flog those who accuse any of the chaste women (of committing adultery), but fail to backup (their charges) with four eyewitnesses — flog them with eighty lashes, and thereafter do not accept their testimony ever again. Surely, they are the wicked ones. (Quran 24:4)

According to Islam, the punishment for wrongfully killing someone is very severe:

If a man kills a believer intentionally, his recompense is Hell, to abide therein (For ever). And the wrath and the curse of Allah are upon him, and a dreadful penalty is prepared for him. (Quran 4:93)

In short, honour killing is not permitted according to Islam. Encyclopaedia Britannica has correctly stated:

“Such “honour killings” are in fact violations of both civil and Islamic law, but perpetrators frequently use religious reasons to defend their actions, thereby giving the crime a veneer of justification.”[i]

And Allāh Ta῾āla Knows Best

Wassalāmu ῾alaykum

Ml. Faizal Riza

Correspondence Iftā Student, Australia

Checked and Approved by:
Mufti Ebrahim Desai
Dārul Iftā, Madrasah In῾āmiyyah

“Honour Killings” in the Western World

Crimes of Passion are quite common in the Western Legal System, so prevalent is it to the US that it even has a moniker, “The Law of Texas” [10]:

crime of passion n. a defendant’s excuse for committing a crime due to sudden anger or heartbreak, in order to eliminate the element of “premeditation.” This usually arises in murder or attempted murder cases, when a spouse or sweetheart finds his/her “beloved” having sexual intercourse with another and shoots or stabs one or both of the coupled pair. To make this claim the defendant must have acted immediately upon the rise of passion, without the time for contemplation or allowing for “a cooling of the blood.” It is sometimes called the “Law of Texas” since juries in that state are supposedly lenient to cuckolded lovers who wreak their own vengeance. The benefit of eliminating premeditation is to lessen the provable homicide to manslaughter with no death penalty and limited prison terms. An emotionally charged jury may even acquit the impassioned defendant.

Interestingly, in 2009, the Coroners and Justice Bill was defeated in the House of Lords after peers voted 15 majority against it. The Bill’s purpose is summed as such [11]:

Peers have thrown out planned legislation to stop murder suspects claiming so-called crimes of passion in order to restrict their convictions to manslaughter.

Harriet Harman, the then Minister for Women claimed the excuse of ‘crimes of passion’, had allowed men to get away with murder for centuries. Rebuffing her, the Bill was degraded by many [12]:

It is a setback for Harriet Harman, the minister for women, who drove the planned changes forward, claiming men had got away with murder for centuries. Dominic Grieve, the shadow justice secretary said it was a victory for “common sense”.

Finally, in 2010 the Act was allowed to come into effect but was much watered down[13]:

The Coroners and Justice Act 2009, which came in to effect in 2010, replaced the murder defence of provocation with a new partial defence of “loss of control”, but exempted sexual infidelity as a reason for such a loss.

Unsurprisingly in 2012, a Court of Appeal Judge, restored the use of ‘crimes of passion’ as a viable excuse! [14]:

Conclusion

As we have read, honour killings are clearly not sourced from Islamic theology. What we see is a cultural and legal tradition birthed in the Roman Empire, fostered in France and sold to the Arab populace. Unfortunately, after almost two centuries of constant application, the once Roman-French law has become intertwined into Arab society and by extension, Arab culture. Arab culture is largely also Muslim culture and in doing so, a cultural habit, if not artifact of the Europeans has found homage in an unsuspecting Arab world. The concept of honour killings or crime passionnel, is categorically detested in Islamic law, but is now part of the Arab cultural tradition as their constitutions were based on French Legal Codes. As can be clearly seen, even the British have trouble trying to curb the law from being enacted and repealed.

The problem with those who blame Islam for ‘honour killings’, seem to forget its history and development, or they choose to ignore its prevalence in their own societies. Often times the “Law of Texas”, or “Passion Crimes” are not labelled as such in Western Societies, and thus often fly under the radar of many.

In conclusion, Islamic theology forbids the notion of crime passionnel and considers this act to be murder for which the perpetrator should be persecuted to the full extent of the law.

Sources:

[1] – “A Casebook on Roman Family Law”, by Bruce W. Frier and Thomas A.J. McGinn (Oxford University Press – 2004) – Page 4.
[2] – Ibid.
[3] – “A Casebook on Roman Family Law”, by Bruce W. Frier and Thomas A.J. McGinn (Oxford University Press – 2004) – Page 114.
[4] – “The Civil Code: An Overview“, The Napoleon Series by Tom Holmberg.
[5] – Ibid.
[6] – “Judicial authority and popular justice: crimes of passion in Fin-de-Siecle Paris“, by Eliza Earle Ferguson, Department of History, University of Albuquerque (New Mexico).
[7] – “Beyond the Exotic – Women’s Histories in Islamic Societies”, by Amira El Azhary Sonbol (The American University in Cairo Press) – Page 192.
[8] – “The Rule of Law in the Arab World – Courts of Egypt and the Gulf” – Nathan J. Brown (Cambridge University Press – 1997) – Page xvi.
[9] – “Are Honour Killings Justified in Islam?“, by Maulana Faizal Riza (Dārul Iftā, Madrasah In῾āmiyyah).
[10] – “Crimes of Passion” – Online Legal Dictionary (The People’s Law Dictionary, Real Life Dictionary of the Law), by Gerald and Kathleen Hill.
[11] – “Moves to stop infidelity as defence for murder defeated – Men who kill their unfaithful partners may still be able to escape murder by using their infidelity as a defence after a defeat for ministers.” – Telegraph UK (2009).
[12] – Ibid.
[13] – “Murder can be ‘crime of passion’, says top judge” – Telegraph UK (2012).
[14] – Ibid.