Friday, April 4, 2014

That honour thing

The last vestige in Anglosphere criminal law of the use of violence in defence of one's honour is the provocation defence. It is only a defence in mitigation, not exculpation, but it harks back to the historical role of honour as a social control mechanism.

The most recent controversy has been in NSW, where Yassir Hassan (54) was found guilty of manslaughter not murder when he stabbed his wife 14 times. In sentencing, Justice Garling said that Hassan:
was provoked into losing his self-control, which explains why he is guilty of the lesser offence of manslaughter and not murder.
Since the other version of provocation which has generated controversy recently is the "homosexual panic" defence, it seems that heterosexual manhood is deemed worthy of special sensitivity. 

Protecting status
In both manifestations of the provocation defence, the lower status person (women, gay male) is held to be responsible for the state of mind of the higher status person (heterosexual male), thereby lessening the legal significance of the lower status person's death. Hence the provocation defence is on the way out, as it has become a little too obviously an offence against equality before the law. (Note that this is not an argument for not differentiating between murder and manslaughter, just against building status games into legal practice.) 

The problem with the defence-of-honour status game is indicated by some of Justice Garling's other comments during sentencing:
Mr Hassan was provoked by Ms Yousif immediately before the attack, [but] he was not acting in self-defence. 
I see no evidence of remorse whatsoever... He regards himself the victim of what occurred and not the perpetrator.
Hassan clearly takes his honour as being more important than his late wife's life. In this state of mind, higher status does not grant more responsibility, but less, as the lower status person becomes responsible for the state of mind of the higher status person and so "guilty" of not showing proper respect. It is not people, but hierarchical relations that are being protected. 

Medieval honour
Separating honour from hierarchy can be a tricky thing.

In his Culture and Conflict in the Middle East, Philip Carl Salzman nicely defines honour as:
… a recognition of righteous behaviour, and a designation of high rank, while its absence is a recognition of failure to fulfill one’s duty, and a designation of low rank.
In medieval and similar societies, the implicit or explicit contract between warrior and lord both grants and recognises status. Any explicit oath invokes the honour of both parties. But the simple ability to provide such warrior service carries with its own honour and status.

The loss of honour can be a drastic thing. In Salzman’s words:
In the absence of honour, one is shamed, and one’s reputation in tatters, and one sinks to a low rank. The consequences are serious and can be severe: The willingness of others to work and cooperate with one, and to exchange children in marriage alliances … is based on reputation.
A person’s honour was a buffer against the actions of others, a personalised social space they were entitled to defend. One of the signs that Europe was moving out of the medieval—out of the society of franchised warriors—into a society of centralised states served by (employee) soldiers and police, is the decline in the standing that defence of honour was granted by legal systems. As the state took over coercion more and more completely, it took over the obligation of protection more and more completely. “He insulted my honour, so I killed him” steadily loses legal standing.

Hierarchy and violence
In one of his very informative papers on long-term trends in homicide, historical criminologist Manuel Eisner writes of honour that:
Much empirical research on the topic emphasizes the crucial role of insults in triggering situational conflicts. This is in accordance with a society in which ‘honour’ constitutes highly important social capital of the male person as a representative of his group (...). It requires retributive violence as a potential and culturally accepted means for maintaining one’s honour (...). Such a theoretical framework may help to better understand why the secular decline in homicide rates primarily seems to have been due to a decrease in male-to-male fights.  
In high homicide societies (pdf), over 90% of victims are male and high status individuals are frequently perpetrators of homicide. In low homicide societies, 30% or more of the victims are female and homicide is much more commonly by marginalised individuals.  

Hence the importance of how law and wider social norms regard the "social capital" of honour. In low homicide societies, violence is pushed to the social fringes and the intensely personal. In high homicide societies, violence is part of the protection of social standing. As Eisner discusses in his first above-cited paper, Emile Durkheim's argument that rising individualism helps lead to a decline in violence because people are less motivated by collective connections has considerable empirical support.

honour killing(1)
Which makes the provocation defence--at least to the extent that it gives legal significance to status games--look even more retrograde. Salzman notes that, in the lineage-driven societies of the Middle East, while men can gain honour (specifically, sharaf, fluctuating social standing), women can effectively only lose it (ird, the honour of female chastity and continence). If a women is seen as publicly shaming her lineage, that can lead to dishonour killing; the main targets of which are women and homosexuals. The very groups the legal significance of whose killing can be lowered by the provocation defence when it buys into honour-status games. 

In their different ways, both Norbert Elias, in The Civilizing Process, and Durkheim examine the social and personal aspects of the form of self-control that reduces homicide rates. The problem with the provocation defence--when it buys into status games--is that it gives legal standing to violent protection of personal honour in a way which works against the inculcation of that self-control by allowing defence of honour as a legally mitigating way to lose self-control.

[Cross-posted at Skepticlawyer.]

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