By Charles H. Norchi, Benjamin Thompson Professor of Law
In Doha, Qatar, the government of the United States and a non-State, representatives of the Taliban, are negotiating the future of a State that is not present – Afghanistan. Meanwhile a grand council known as a Loya Jirga meets in Kabul to consider the future of the Afghan State. Semin Noori, head of one of the assembly committees, has said that the “withdrawal of foreign forces should not mean that all advances made in women’s rights are forgotten and we are forced to suffer again.” For centuries, law of Afghanistan has been more custom than code. The legal sources are tribal practices and religious beliefs. The problem is that when America exits, the Taliban will re-enter and influence the path of the law.
The Importance of Custom
I came to understand the importance of custom during the Soviet-Afghan war while teaching humanitarian law to a group of mujahideen (as the Afghan guerrillas were known). Each day the men would appear in the morning, heed my request to leave weapons at the door, and over the ensuing six hours they would hear about lawful conduct in combat, prohibitions on torture, and treatment of prisoners – all expressed in the text of the Geneva Conventions.
On the final day, the most bearded and revered man in the room who had always occupied the same front row seat, arose and expressed thanks on behalf of the group. What they learned during these days, he said, was the subject of discussion among the group late into the night. He then posed a question on behalf of the group: How are we to treat non-Muslims? I was caught off-guard.
The elder, and the group, were clearly interested in the law – the Geneva Convention codes. But the question he posed was from the standpoint of their law. Their law was how they did things, by long evolved custom. Their decisions, reached in jirgahs, shuras, or councils, were accepted as authoritative by the community. They were backed by force and were thus law. This was Pashtunwali, or ‘Law of the Pathan,’ their form of a code. It was different from a Western text.
During that time, the great American anthropologist Louis Dupree would invite journalists, lawyers, consultants, and spies to Dean’s Hotel in the old British cantonment of Peshawar, Pakistan. Over the local Murree beer he explained how Pashtunwali would trump written rules, especially if those rules were promulgated from Kabul or abroad. Among his lessons – in order to know the law in Afghanistan, you cannot rely on formal agreements and textual statements. Instead one must observe habitual behavior.
A Brief History
Afghanistan received its first constitution in 1923 under King Amanullah I. A few secular codes followed with the first system of courts. In the image of Turkey’s Ataturk and Iran’s Reza Shah, Amanullah attempted to modernize traditional customs including the wearing of the veil. The response was tribal uprisings and Kabul was occupied by a Tadzhik bandit who proclaimed himself Habibullah II. Amanullah fled to India and ultimately reached Switzerland where he died.
In March 1963, King Zahir Shah appointed a committee to draft a new constitution. After a year of meetings with advice from international experts the text was presented to a Loya Jirga in September 1964. It was considered to be among the most advanced constitutions of the Islamic world and ushered in a period of stability. When the Soviets invaded in 1979 the country plunged into never-ending war. Yet as the State failed, people thrived. Through years of chaos they did so in traditional communities. Law – dividing up the weal and woe of life – did not unfold with reference to formal codes. Law emerged from operational codes embedded in culture and custom.
With the fall of the Taliban regime, Afghanistan would have another Constitution, and written codes on aspects of life from commerce to crime. Under the terms of the December 2001 Bonn Agreement, the 1964 Constitution operated for the Afghan transitional government until the adoption of the 2004 Constitution. But there is still no formal legal system with national reach and application. A critical pathology of the current Constitution is that the centralized system it created was foreign to the Afghan experience. Apart from Kabul and a few other urban centers, it holds little relevance across the vast rural canvas where most Afghan life unfolds.
The Path from Custom to Code
The Roman jurist Papinian said “Communis rei publicae sponsio.” (Lex is a common engagement of the Republic). In Afghanistan that engagement must unfold in shuras, councils, chaikanas, and mosques. Absent that process there can be no relevant text and hence no law properly understood. That is the only path from custom to code in Afghanistan. When the West withdraws, the human dignity of Afghans and security of the region will in large part depend on that path. When Dr. Sima Samar spoke at the 2014 Justice For Women Lecture, she stressed the importance of effective legal mechanisms and institutions for the protection of human rights including women’s rights.
As the armies of the West depart, the Taliban will assume a role in the government and the ability to influence law. The Qatar negotiations might bring America’s longest war to a conclusion. but post-Pentagon Afghanistan will not mean post-America Afghanistan. Afghans will still look to western legal organizations, including American law schools, to help steady a wobbly legal architecture, continuing the journey from custom to code.
For additional background information, see “Nation Building: A Legal Architecture” in the Maine Law Review.