By: James G. Apple, Editor-in-Chief, International
Judicial Monitor and President, International Judicial Academy
When I graduated from law school and passed the bar exam in
the early 1960s, I was ready to start my life as a practicing lawyer. However,
there was one more step that I had to take to become a qualified member of the
bar. That action was to take an “oath of office” in a court, an act that would
finally admit me to the profession in the state where I planned to practice.
That state was Kentucky. When I appeared in court to have the oath administered
by a judge, who would read the oath required of me by the Kentucky
Constitution, here is what I heard:
I do solemnly swear that I will support the
Constitution of the United States and the Constitution of this Commonwealth, and
be faithful and true to the Commonwealth of Kentucky so long as I continue a
citizen thereof, and that I will faithfully execute, to the best of my
ability, the office of attorney at law, according to law, and I do further solemnly
swear that since the adoption of the present Constitution I, being a citizen
of this State, have not fought a duel with deadly weapons within
this State nor out of it, nor have I sent or accepted a challenge
to fight a duel with deadly weapons, nor have I acted as a second in
carrying a challenge, nor aided or assisted any person thus offending,
so help me God. * (Emphasis added)
The first part of this oath of office was uncomplicated,
routine and not unexpected. But I have to admit that, having never read the
Kentucky oath of office provision of the Kentucky Constitution, I was taken
aback by the language of the second part relating to dueling. After all, I was
swearing an oath in the United States in the latter part of the 20th century - not in Europe or the United States in the 18th or 19th centuries. So, I wondered, why was I being subjected, in taking an obligatory
oath of office to practice law, to the requirement of denying any involvement
in dueling. I regarded that activity as an antiquated practice that I assumed
had ended when U.S. Vice-President Aaron Burr killed former U.S. Secretary of
the Treasury Alexander Hamilton in a duel in Weehawken, New Jersey on the
shores of the Hudson River in 1804.
The practice of dueling is the subject of recent analysis by
the noted American philosopher, Professor Kwame Anthony Appiah, English born
but raised in Africa, and formerly of the Princeton University Philosophy
Department. He is now a professor at New York University. When Shirley M. Tilghman,
President of Princeton until last year, was asked by Forbes magazine in
2009 to name the world’s seven most powerful thinkers, she selected Professor
Appiah as her number one choice. The next year Professor Appiah published a
seminal book, The Honor Code, How Moral Revolutions Happen.
This book examines three separate situations involving
matters of honor that were linked to now-forbidden practices in different
societies and cultures. The first practice that Professor Appiah takes up in
his book is dueling. He traces the origins of dueling (which began as a form of
judicial combat to resolve disputes) and describes certain famous duels that
took place, some in England during the 18th century. He analyzes the
phenomenon of duels and describes the reactions to that practice and what
eventually became of it. The next practice he examines, one that again involved
questions of honor, is the practice of female foot binding in Chinese society.
This practice could have started as early as the 10th century, but was
adopted as a required social convention and well established in China by the 13th century. Again he chronicles what became of this painful, debilitating and
deforming convention. The third and last practice examined by Professor Appiah
is the Atlantic slave trade of the English mercantile class, begun in England
during the development of its world-encompassing empire in the 17th and 18th centuries and ended in the mid-19th century. In
the practice of trafficking in slaves from Africa for work in Europe and
America, the “dishonorable” labor of slaves is contrasted with the “honorable”
labor of the white, working classes in England. This dishonorable labor by
slaves, and the trade that enabled it, were vigorously condemned by English
abolitionists.
As Professor Appiah suggests in the title to his book and
throughout it, the central issue is what caused these despicable practices
ultimately to die out. Why did they become associated with dishonor, and why
did they end? The answer that Professor Appiah gives is that all were
ultimately ridiculed and morally condemned, especially by the learned and the
pious. Dueling was denounced by, among other notable English citizens, Francis
Bacon, Attorney General, Lord Chancellor of England and eminent philosopher.
Foot binding was severely criticized and condemned by Kang Wu Wei, a member of
the Chinese literati in the 19th century, as well as leading
Christian missionaries prominent in China in the same century. The same was
true of the African slave trade, which became a subject of denunciation during
the same period by the powerful Anglican Bishop Samuel Wilberforce and other
members of the Anglican clergy.
All of this brings us to the issue of “honor killings,”
which Professor Appiah mentions in his book and in a later essay, “The Life of
Honor,” presented at the Cosmos Club in Washington, D.C. in January, 2012 and
later published by that club. This practice, if press reports are any
indication and to be relied upon, is widespread in many areas of the world, particularly
in the Middle East and India. It is largely a family phenomenon. Honor killings
occur when a family member, usually a female, becomes involved in some kind of
activity or affair, usually sexual, in such a way that it brings “dishonor” to
the family. Because of the
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perceived dishonor, the culture of the society where
the family resides authorizes a member of the family, usually either the father
or husband of the “offending” female, to kill, or perhaps a more appropriate word is
murder, the alleged miscreant. The sentence is usually carried out with little
or no investigation, no right of the accused to present her version of events,
no arguments allowed as to who was actually at fault; in short, no procedures
that would resemble even slightly a hearing to determine facts, the applicable law and fault.
I recently was exposed to this practice in an unusual
situation – I was reviewing some papers dealing with appropriate subjects for
presentation on issues related to judicial and court reform. In one paper there
appeared a comment on what the writer asserted was an issue of fairness. The
proposal made the assertion that the laws of a particular country permitted the
“honor killing” of a wife who had dishonored the family. The complaint was that
there was no reciprocal right of the wife to kill her husband who might have
brought dishonor to the family. Therefore, in the name of fairness, the law
should be changed to permit both.
I was incredulous, not because of the unfairness of the
existing law, but because there was no sense of outrage at the whole business
of honor killings, no wholesale condemnation of the practice on both sides of
the gender fence, no denunciation of the whole issue of honor killings being
morally repugnant, abhorrent, detestable and unacceptable in any kind of
civilized society.
There are many things wrong with the concept of honor
killings. In the first place, as is suggested by the above narrative, the
practice is almost always directed at females, based on charges or accusations
made by one or more males, particularly young men, who may or may not be
members of the female’s family. In many, or probably most instances the victim
of the “crime,” the woman, is also the accused, so that the mere fact of being
the victim of a rape or sexual assault by a man somehow provides justification
for the removal of the stain of dishonor on the family by killing her. That
makes the situation inherently unfair and unjust. And honor killings, being the
result of honor accusations made in private, are almost never subjected to the
requirements of due process of law that are the hallmarks of criminal
proceedings in civilized countries. As stated above, an accusation is made, no
investigation, or an inadequate one, is made by government or civil authorities,
and family members are the prosecutors and judges. The sentence is carried out
without any semblance of orderly proceedings characterized by the systematic
presentation of evidence, arguments of counsel, and careful analyses by
independent judges acting in transparent, public proceedings applying laws
properly adopted by citizens, which should be the norm.
In short, honor killings are barbaric, in the same way that
dueling in England, Europe and the United States; foot binding in China; and
the African slave trade in the U.K. and elsewhere, were barbaric.
Law, particularly due process of law, is one of the basic
barriers that separate humans from beasts. When that barrier is removed,
civilization takes a step toward returning to the animal kingdom. The main
guardians of that barrier are judges. They represent the legal and in some
instances the moral authority of the community. If some community practice is
grossly immoral, unfair, and uncivilized, as is the case with honor killings,
judges can and should speak out against such practices, and refuse to recognize
them and give them the force of law by allowing arguments in their favor in
courts.
Judges can do that. Moses Naim, a scholar at the Carnegie
Endowment for International Peace in Washington, D.C., and former
Editor-in-Chief of Foreign Policy magazine, in his most recent book, The
End of Power, comments on the new power of judges to effect change. In the
chapter, “The Decay of Power in National Politics,” he describes situations in
different countries where judges’ actions have significantly altered the
political landscape, e.g.:
- Judges in Thailand during the turbulence in that country,
beginning in 2006, “increasingly set the direction of national politics.”
- In Italy a group of judges exposed extensive corruption in major
political parties to such an extent that “ these parties faded into
irrelevance….such investigations have turned celebrity judges into new players
in political life.”
After reviewing these developments, Naim comments that “in
the landscape of domestic politics, the increasing power of judges varies
enormously from one country to another, but in general terms it has imposed new
constraints on the exercise of power by government leaders and political
parties.” In the same way judges can wield enormous influence to end, or at
least significantly reduce, the power of families that believe in and engage in
honor killings. They can end or lessen the number of honor killings in their
home countries. Such actions by judges could result in new-found respect for
their countries in the international community, and perhaps pave the way for
further reforms that might result in, finally, peace in those regions.
Professor Appiah concluded that immoral practices based on
misguided concepts of honor were eventually eradicated by ridicule and
condemnation. So should it be with the practice of honor killings. Honor
killings are immoral and disgusting, as well as stupid – stupid because they
deprive a community of persons who could make positive contributions to the
well being of the local society, and who are usually without fault. There is
one way to get rid of this hideous practice, and that is by a chorus of
ridicule and condemnation coming from those who represent the law and who can
serve as leaders of an honor killing abolition movement – judges.
*The Kentucky Constitution
was ratified on August, 1891. It was revised on September 28, 1891. Section 228
on oaths of office has never been revised or removed since that time.
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