Pashtunwali: Pashtun Traditional Tribal Law in Afghanistan

Pashtuns performing the Khattack dance, NWFP, 1933-1935, War Office photographic collection, UK National Archives.

An introduction to Pashtun traditional law may be useful in understanding the dynamics of Taliban governance and social authority in Afghanistan. Senior Taliban commander Waheedullah Hashimi told Reuters on August 18, 2021 that, “There will be no democratic system at all because it does not have any base in our country. We will not discuss what type of political system should we apply in Afghanistan because it is clear. It is sharia law and that is it.

However, while Pashtunwali traditional law is not openly embraced by the Taliban, it certainly does have a base in the country among the Pashtun, who overwhelmingly dominate the group. Pashtunwali also colors the most fundamental understanding of what is socially correct behavior among the Taliban’s foot soldiers and rural adherents.

Cultural Property News is publishing an outline of the role of Pashtun traditional law in Afghanistan, written some ten years ago by our editor and briefly updated.

Pashtunwali: Pashtun Traditional Tribal Law

The dogs of the Mohmands are better than the Bangash,

Though the Mohmands themselves are a thousand times worse than the dogs.

The Warrakzais are the scavengers of the Afridis,

Though the Afridis, one and all, are but scavengers themselves.

This is the truth of the best of the dwellers in the land of Pathans,

Of those worse than these who would say that they were men?

Khushal Khan Khattack, the most revered Pashtun poet (1613-1690)

A poem critical of Pashtun alliances with Mughal rulers, [1]

General Background and History

The Pashtun (also known as Pukhtun and Pathan) people are the dominant ethnic group in the region of southern and eastern Afghanistan and the Tribal Territory of western Pakistan. The Pashtun claim to comprise a majority of the population of Afghanistan (estimates range from between 6 and 9 million Pashtun-speaking Afghans, and another estimated 11 million live in Pakistan.)[2] The Pashtun tribe dominates Afghanistan politically; all of Afghanistan’s rulers since the late nineteenth century have been Pashtun.[3]

More than sixty major clan groups[4] make up the Pashtun. They share a common language of Indo-European origin called Pashto or Pukhtu. They also share a belief in the ancient origin of the Pashtun, traced in some popular lore to the Lost Tribes of Israel, but more formally through descent from the three sons of Qais bin Rashid, from the region of Ghor in Afghanistan, who was said to have traveled to Arabia to be converted to Islam either by the Prophet Mohammad himself[5] or by the Prophet’s son-in-law, the fourth Caliph ‘Ali.[6]

Four Sons of Nawrūz Khan of Lal Pur, 1878. Of the Marchakhel family
a sub-tribe of the Marchakhel Mohmands, are among the most powerful Mohmands.

Although there are few written records of the tribe’s history, the Pashtun share oral traditions of poetry celebrating their valor and sense of community along with many tales illustrative of the fundamental beliefs associated with Pashtunwali, their national creed.

If there is a character trait that may be common to all Pashtun, it is their strong sense of personal independence. This independence makes possible – even inevitable – a highly fluid hierarchy of power within each clan and within each larger tribal confederation, and makes Pashtun political life both unstable and endlessly exciting.

The fluid nature of power within Pashtun society plays out in domestic life down to the nuclear family level. In anthropological terms, the system is described as an “acephalous patrilineal segmentary system”: there is no centralization or developed hierarchy; all descent is traced through the father; and finally, each segment of the line of descent “stands in complementary opposition to Its closest neighbor on an equal level.” [7]

This segmentation places enormous stress on any established power structure. The Pashtun have rarely been willing to unite under a single leader; nor have they ever been altogether subdued by an outsider. Over the centuries, the Pashtun have remained an unruly and unpredictable force in the region.

The Pashtun tribe’s inability to form a focused, united, central administration has been made more difficult by the fact that the Pashtun living in western Pakistan have been divided politically from their Afghan neighbors since the demarcation of the Durand Line separating Afghanistan from what was then British India.[8] Pakistani Pashtun tribes live in a region only loosely controlled by the government of Pakistan known as the Tribal Territory. Many have never truly acknowledged sovereignty by any Indian-based or Pakistani government.

Yet this same strong independent identity has been a source of strength. It has enabled the Pashtun to form a remarkably cohesive resistance to outside forces when the group as a whole is threatened. This has been seen historically in the three decisive defeats suffered by the British during their invasions of Afghanistan in the 19th and early 20th centuries, and the extraordinary tenacity of Pashtun opposition to the Soviets during over a decade of war beginning in the late 1970s.[9]

Principles of Pashtun Traditional Law

Agroup of Afridis. Photo by John Burke, 1878. Burke accompanied the Peshawar Valley Field Force, one of three British Anglo-Indian army columns deployed in the Second Afghan War (1878-80). The Afridi are Pashtun Afghans, part of the Karlani tribal confederacy, who both fought against and with the British in Afghanistan during all three Anglo-Afghan wars.

The principles on which Pashtun tribal law is grounded are found in Pashtunwali (literally ‘Pashtun-ness’). The main tenets of Pashtunwali are (1) hospitality and asylum to all guests, (2) justice through the law of Moses, “an eye for an eye”, (3) the defense of zan, zar and zameen (women/family, treasure, and land), and an unstated final element, that ideally, each Pashtun recognizes no master, that he is completely personally independent.

For both men and women, the correct performance of social duties is essential to maintaining a sense of personal honor. Indeed, honor is the word that many Pashtun will use to define or translate the essence of Pashtunwali. The element of Pashtunwali that is most important to personal honor is the rigorous maintenance of completely separate social spheres for men and women.

Other important tenets of Pashtunwali are melmastia (hospitality), nanewatei (forgiving a penitent enemy), and badal (usually translated as revenge, but a term that covers social balancing acts, ranging from striking down an enemy (or their relative) in a blood feud to the exchange of a bride as a way to make peace with another clan). Commonly accepted elements of Pashtunwali still found today include hota, the kidnapping of persons or carrying away of valuables belonging to the family of an enemy or debtor and holding them for ransom; lokhay warkawal, a symbolic act of submission presenting a gift (usually a goat or sheep for a feast) to a more powerful tribe, which then takes the weaker group under its protection; and saz, the giving of blood money in compensation for the life of a person killed, either by accident or in a feud.”[10]

Individual honor also demands that one’s immediate family members follow Pashtunwali as well: certain bad acts by family members may taint an individual’s honor and require capital punishment of the culprit by his or her own family;[11] and any offense against a family member must generate an immediate retaliation in defense of honor.

Pashtunwali and the Women’s World

A division of responsibilities and powers between the sexes through the physical separation of the women’s world may be found among many Afghan ethnic and linguistic groups. However, among Persian-speaking Afghans, and especially among the Turkic and Hazara peoples of northern and central Afghanistan, the seclusion of women is invested with less symbolic meaning than it is among the Pashtun.[12] In most of northern Afghanistan, women take a more active and public role in decision-making, and there is open acknowledgement of the economic and social power that women wield.

The public role of Pashtun women is highly circumscribed despite their very active internal role as decision makers within their families. Indeed, Pashtun women often appear to an outsider to be completely bound within the social constraints of Pashtunwali. These social barriers involve complete separation of women from all but the closest male relatives, very limited social contacts with women outside their extended families, adherence to all the friendships and feuds of their marital family, punishment of barrenness by divorce, punishment of adultery by death, marriage partners chosen by their elders, and (though more rarely) forced marriages, including to their husband’s brother should the husband die. There is substantial truth to the Pashto saying that states, “Women are but half-worth human beings.” [13]

Kandahar, photo by Benjamin Simpson, circa 1880. In the courtyard of an unfinished government palace known then as Wali Sher Ali Khan’s Zenana. Unusually, several women are present, probably for medical treatment.

From early childhood, girls are told that they will bring shame to themselves and their families should they violate the rules of purdah, seclusion. Little girls are allowed to run free, acting as the emissaries of older women to run errands and carry messages between the home and public spaces, but as soon as a girl enters adolescence she is considered of marriageable age and must stay within the confines of the high-walled, fortress-like Pashtun home or veil herself when she leaves it. (Nomadic, tent-dwelling Pashtun groups, while maintaining separate men’s and women’s social spheres, do not follow the strict veiling of the settled Pashtun.)

While purdah is publicly defined as a method for protecting women from external dangers, there is a powerful subtext expressed through it: women are dangerous creatures, only half-civilized and out of control, and unless their field of action is limited by purdah, they will shame the family. Perhaps in rebellion against these cruel strictures, there is a tradition of making women’s songs called landais, which are sung only among other women. Landais often express “themes of romantic love, sensual pleasure, courage, and defiance against the men.”[14]

Pashtun marriages are not made in heaven, but by mothers and mothers-in-law with an eye towards enhancing clan alliances and increasing family economic and social power. Most marriages are within the tribe, with the exception of arranged marriages to solve serious disputes between tribes, also called bad or badal.[15]

For Pashtun women, joining another family does not mean renouncing loyalty to one’s own lineage. Pashtun women are equally committed as men to the ideals of Pashtunwali, and many husbands and wives find themselves in a continual struggle for power. Men try to dominate and shame women (especially by taking another wife), women react with violence against husbands. Sons generally become their mother’s allies. Especially within families where there is more than one wife, women tend to wield power through their sons.

Tribal identity and traditional beliefs founded in Pashtunwali hold far greater sway over most Pashtun than national, class-based, or even gender identity. Tribal traditions and customs remain very strong among most Pashtun, and determine not only marriage alliances, but political allegiances. Both men and women are strongly committed to the idea that no Pashtun should ever submit to another person. Both see village, clan, and even national conflicts in very personal terms. On a village level, women may engage in raucous fights over petty misdeeds of each other’s children, refusal to make a loan, or other neighborhood disputes. Poor women may confront each other in the street, wealthier ones shout at each other from the rooftops of their compounds.[16] Women express even stronger feelings of contempt than men for persons who exhibit fear or fail in battle. Women’s songs celebrate courage and though few women actually participate in battle, they will shame cowards by showing them a veil. A woman’s song goes, “Let them carry you back to me cut to pieces by swords, only [that] they never bring me news of your shame.”[17]

Social Status and Conflict

Many major family conflicts are over land. Although these are primarily between half-brothers and cousins, sons disappointed in the prospects of inheritance may kill their fathers, or brothers refuse to allow sisters to marry. Poverty is rife among the Pashtun, land is scarce and often minimally productive. Perhaps because of these stresses, every man’s hand is against his neighbor in constant disputes over land, over ancient and modern debts, over attempts to best the other in social gamesmanship, and in unspoken contests to see who adheres most closely to social norms. Even outside the family circle, conflict tends to be between individuals rather than groups, although blood feuds involving larger families often result from what began as individual conflicts. Still, Pashtun always describe conflict as emanating from an individual. “I against my brother, my brother and I against our tabur (patrilineal cousin), the three of us against the world,” is how another Pashtun proverb puts it.[18]

A group of Afridis fighters, photo by John Burke, 1878.

However, every conflict between individuals is endlessly discussed throughout the community, and there is no hesitation in speaking out about such problems in the interest of overall community stability. Because marriage and economic alliances are seen as affecting entire communities as much or more than individuals, clan and communal decision-making in these matters is also extremely important. This community decision-making finds its fullest expression within the jirga system.

Pashtun refer to their Pashtun identity using the word tabar (meaning “tribe”), but most people’s larger group identity is tied to the concept of –khel (lineage) or –zai (descendants of a larger family grouping).[19] There is no permanent hierarchy, but rather a state in which everyone is theoretically equal, but at the same time is bound to inherited allegiances and social debts.

Individual property rights and clan identity is defined through the father, and can be traced back through to an original ancestor who is “father” to all Pashtuns. A clan elder or powerful man will have a kurimar – a private army made up of men beholden to a khan (head of a clan).[20]

The social category of students and other de-tribalized young men is a recent social development. There is a good deal of anxious uncertainty in traditional communities about how young people strongly influenced by the outside world will fit into traditional society as they grow older. There is also a wildcard element disruptive of traditional hierarchy created by the extensive emigration of migrant workers to the Gulf. These men are usually from lower class families but often become much richer than khans.[21]

Jirga and the Operation of Traditional Law

While social and economic issues within families are generally resolved by elders within the clan, tribal judicial councils are the main players in any dispute between families or clans and are very active in enforcing adherence to accepted political and social behaviors. Most “official” decisions in tribal life are made by informally elected elders and wise men. Pashtun Afghan groups decide matters of crucial importance affecting the whole clan at this convocation of adult males called a jirga (also the title of the meetings of the Afghan Parliament). A jirga is not a scheduled meeting, but a convocation that may be called by any member of standing in the community. Jirga may be called to deal with water allocation issues, with collective work for the community, called hashar, such as building a bridge or cleaning a canal, supporting the needy, and resolving issues within and between families that threaten the peace of their neighbors. Virtually any problem, from adultery to disputes over dowry to the need to build a new school can be brought before a jirga. Involving outsiders is a sign of the failure of the family/clan system; in criminal as well as civil cases, police or government officials are called in only as a last resort.

Kandahar. Men and young boys have gathered on both levels of a ruined building and in its courtyard and are observing the photographer. Photo by Benjamin Simpson, circa 1880.

On its face, the jirga is one of the most democratic of all Afghan systems for resolving disputes. Any problem large enough or difficult enough of resolution to call a jirga for, merits the attention of every member of the community, and all adult males will be called to it. Naturally, although all males of standing are expected to participate (and among some tribes, every adult male should be present), a few powerful men will generally influence the final decision. However, one of the difficulties in describing a rule-making hierarchy among the Pashtun is the constant struggle for personal power within each family, kinship group, clan, and tribe – and the social acceptance for and accommodation of that struggle. The most Pashtun of all Pashtun ideas may be found in virtually every individual’s belief that he is “first among equals,” so jirga decisions are certainly not pre-ordained.

A person accused of wrongdoing before a jirga either speaks for himself or (more likely) asks someone of authority in his family to speak for him. There is no formalized concept of offering a defense according to certain rules, and certainly no guarantee of the right not to speak, or to directly face ones accusers (although family representatives speaking for the other side also take on the role of the other party). The absence of women from jirgas is another of its most limiting factors as an effective judicial mechanism. Pashtun women are by no means weak or lacking in spirit (quite the opposite) but they must make their concerns heard through the mouths of male relatives at a jirga.

Jirga are not called often, or for trifles. Pashtun social values rein in most unacceptable social behaviors, or at least keep them within limits. More than many other tribal peoples who have had extended contact with European or colonial values, the ordinary Pashtun actually lives his life within the ideological “rules” of the tribal society. When a Pashtun expresses his personal social values it is very rare that they do not parallel the idealized “fundamental values” of Pashtun society. As a result of this conjoined personal and tribal identity, there are few anomalies or deviant structures within Pashtun society. It is an extremely conservative world, despite its characteristic individuality and unstable hierarchy.

In Afghanistan under the Soviets, both official government structures and traditional forms of governance suffered from chaos and disruption – as well as the fragmentation of traditional villages as millions of Afghans fled the country. The Pashtun regions were centers of resistance to the Soviets. The regions were conduits as well: guns, supplies, and manpower all passed through Pashtun territory, and after bringing family members to safety in Pakistan, many male Afghans from all ethnicities returned through Pashtun territory to take up arms in ad hoc military units formed from clan or village alliances.

Despite the fact that they were living in an active war zone, Pashtun village leaders continued to rely primarily on the institution of jirga as a forum for making decisions, reducing conflict, and maintaining group identity. Always suspicious of outsiders, villagers found greater assurance and security in placing decision-making in the hands of persons familiar to them who shared their own ties to the community. In matters of great importance, particularly involving the honor of women and the family, the traditional system, not the governmental system, was the trusted mechanism for identifying the actual source of harm, and appropriately determining both responsibility and punishment. (For many Pashtun in neighboring Pakistan, where there is a fairly functional government and an elaborate judicial system that, while fraught with corruption, at least offers a regularized legal process, the jirga remains the place for finding justice in times of true crisis. This can be as true for a distinguished member of the judicial elite, as for the peasant.)[22]

With the withdrawal of the Soviets at the close of the 1980s, Afghanistan’s war became an internal struggle between the different factions among the resistance, which had been organized primarily around tribe and clan groups. A relatively small and little-known group of religious students, the Taliban, who were disciples of a Pashtun pir or holy man, had established a resistance group in south-eastern Afghanistan. Thanks to massive funding and quality weaponry, both supplied by the CIA through the highly conservative Pakistani military, the Taliban expanded their territory through most of the Pashtun region, superseding other Pashtun local commanders. They also gained U.S. support as a counterweight to mujahideen groups perceived as “Islamic fundamentalists.” [23] As the war continued and the Taliban ousted the more moderate Rabbani government in Kabul, the Taliban were welcomed by many Afghans as comparatively uncorrupted and able – if nothing else – to bring stability to the country.

Although initially perceived by most Afghans as Muslim traditionalists, the Taliban were in fact a messianic movement[24] that differed substantially from traditional Afghan Islam. Under the Taliban, forms of tribal government like the jirga system were undermined in several ways. Military leaders introduced agents into jirgas to represent their interests, and many young Pashtun men were sent away from their communities to train to become fighters in Pakistan territory, where they attended fundamentalist religious schools. The Taliban ordered that a different system of forming jirgas take place, using the Arabic term shura (council) for the new assembly and appointing the village Mullah as its head.[25] Instead of the traditional jirga form, in which every adult male could speak freely and vote for delegates to represent him in larger regional gatherings, the Taliban eliminated most of the democratic element of the jirga by banning this open dialog in the shura and replacing jirga rules with their own version of religious laws.

Enacted law – Governance in Pre-War Afghanistan

In part due to Afghanistan’s historically extremely limited government administrative structure and its relatively narrow reach into the lives of citizens outside of a few cities, rural government in Afghanistan changed little over the last century until the Soviet invasion. In fact, many of what became standard government operations were established under Afghanistan’s first truly powerful central ruler in modern times, the “iron” Amir Abd al-Rahman Khan, who ascended the throne in 1880.[26] Abd al-Rahman’s system of regional governorships was supplemented (and sometimes supplanted) by generals commanding soldiers barracked in each region. This remained the consistent pattern for administration of Afghanistan’s rural provinces for almost a century. While somewhat impacted by the modern world, regional administration in Afghanistan tended to be very consistent. There was probably more difference between the operation of a Pashtun district and an ethnically Uzbek district in the 1880s than there was between a Pashtun district in 1880 and the same district in 1950 or in an Uzbek district over the same time period. Although Abd al-Rahman desired consistency and central rule, regional variations were based upon political relationships between Afghanistan’s many ethnic groups and these relationships were quite consistent over time.[27]

A jirga of the Massuzai Orakzai. Printed by Frederick Saint John, photographer unknown.

For tribal peoples, outside law existed primarily in the form of provincial governors and the police. Provincial governors were likely to be from a group other than the one holding power in a particular area.[28] Their job was to maintain basic levels of peace and collect taxes. Governors had a parallel organization similar to the court of the center. There was an official called the sardaftari (literally head of the office) to run durbar (the governor’s public court) and a qazi or qadi, a judge, who advised on both religious and legal matters. Both these officials acted with considerable independence, sitting with the governor when he held court and giving advice and counsel on the spot.[29]

Qazi rendered judgment in legal cases both alone and in consultation with the governor.[30] Appeal was to the central government – essentially directly to the Amir or King.[31] Lower officials called kotwals were appointed by the central government.[32] Kotwals had charge of the police, who acted primarily as night-watchmen.

Kalantars were chosen by the local people and reported on births, deaths, weddings, funerals, who was passing through villages, what guests came and who they stayed with. They also kept a lookout for fugitives. Kalantars were held personally responsible for the condition of the streets and for drainage of canals and sewers, and might be fined if their village was unkempt.[33]

Hakims, heads of districts, had roles similar to governors, but on a smaller scale.[34] Hakims served as the junction between traditional tribal forms of governance and official rule. Hakims were often tribal elders who commanded a good deal of respect in their region. As the state became more powerful, so did the hakims. That seems a contradiction in a way, because the hakims were important in traditional governance. However, as the role of the mediator between outside and internal governing bodies became more necessary, it also grew in importance.[35]

Judges, qazi, were appointed to the administration at the district level along with hakims. In the late 19th century, qazi throughout Afghanistan were almost exclusively Pashtun who had studied at the Kabul madrasah (religious school). All were from the Sunni sect of Islam, although Afghanistan has a large Shi’a minority group in central Afghanistan, the Hazara, as well as scattered groups of Ismaili Shi’a in the mountain regions to the north-east.[36] While there is broad agreement in the treatment of many social issues within different schools of Islamic law, and great respect for Islam and especially the text of the Koran among virtually all Afghans, the simple fact that a qazi was an outsider was sufficient to place the law as administered through the qazi apart from customary and traditional law in the eyes of the communities so served.

Commonalities between Religious Law, Enacted Law, and Customary Law

There was and is a great deal of enacted law in Afghanistan, codified by the central government. Although every Afghan constitution has stated in its preamble that all Afghan law is in harmony with Islamic law, and Afghanistan had the most liberal constitution in the Islamic world prior to the Soviet invasion in 1979,[37] much modernizing legislation was enacted by the Loya Jirga, the Afghan parliament, in which women parliamentarians were active participants.

Kandahar, A street vendor is selling food. His shop is adorned with printed cloth from Iran. Photo by Benjamin Simpson, 1880s.

Since the early 20th century, Afghanistan has utilized multiple sources of official law; blending statutory law, constitutional provisions and amendments, executive proclamations, and Islamic law. Islamic law in Afghanistan was dominated by the Hanafi School of jurisprudence, a structure not incompatible with the laws of the modern state that were enacted as part of Afghanistan’s 1964 constitution.[38]

There is effectively no enacted law within traditional and customary Pashtun law. Such a formal legal source or text that exists is found entirely in the Koran. In the rural Pashtun regions, Koranic law tends to be drawn upon primarily when there is an absence of guidance from within Pashtun tradition.[39] When there is guidance from Pashtun tradition, however, shariah takes second place.

This is the case particularly with regard to issues involving women. Divorce, which is easily attained by men under Islamic law,[40] is very rare among the Pashtun. It is virtually unobtainable by rural women.[41] According to the Koran, women have the right to refuse a marriage, which is denied them by Pashtun tradition. The Koranic practice of mahr (a sort of divorce insurance in which a man sets aside a portion of land or a sum of money for the woman before marriage) is known but not acted upon among the Pashtun. Women are legally allowed to own land under Islamic law and should inherit half the share of a brother on her father’s death, but women do not inherit land among the Pashtun. In the Koran, women have the right to pray in the mosque and to go on pilgrimage, but this does not take place in rural Pashtun areas.[42]

Changes under the Taliban

Rule by fiat, usually by military commanders, becomes more important than consensus in times of great crisis, when community life is disrupted by war. The constant state of war since 1979 militarized traditional Pashtun tribal organization, and violence became more prevalent as a means of solving problems. Although life in Afghanistan could be brutal before the war, the consequences of “eye for an eye” justice and the transmission of individual responsibility for wrongdoing to entire clans meant that people were very cautious about inflicting violence on one another. This system broke down during the war.

The failure of mediation through traditional channels also came about as a result of the introduction of religious ideas coming from outside of Afghanistan. Afghans have always venerated saints and holy men,[43] but absolutism and fanaticism are not at all typical of Islam in Afghanistan. The Taliban were the creation largely of the Pakistani military and CID (Pakistani intelligence), who are strongly influenced by Wahabism and other extreme Arab sects of Islam.

The lack of education among many Taliban-oriented Pashtun clerics, who were considered the local authorities on religious law, led to many deviations from actual Islamic law during the periods of rule of the Taliban. Interestingly, when Taliban leaders were remonstrated with by the ulema, the highest level of Islamic clerics and legal scholars in Pakistan, Egypt, and other regions (often because Taliban-enforced law was very different from established Islamic law), the Taliban simply ignored the criticism.

Under the Taliban, regional warlords found the jirga system too democratic for their taste. The warlords attempted to influence jirga decisions, both by making sure that influential men within the communities were following a Taliban line, and by weakening the jirga through the influence of local mullahs and the shura system.

Since the fall of the Taliban after U.S. intervention in Afghanistan, any shred of structure, whether traditional or Taliban imposed, has been held on to as a means of securing some kind of stability. The ongoing fighting and strife in much of the Pashtun region, where Taliban elements are strong, makes it nearly impossible to begin to rebuild traditional society. In areas that are somewhat at peace, there have been attempts to bring back traditional jirga. People are tired of war and see jirga as a preferred means of settling conflicts and at the same time, reducing the influence of warlords and military forces.[44]

Local law in the 21st Century

A major study in Afghanistan by Tufts University in 2003 showed that over half of the judicial personnel in Afghanistan had no official legal training.[45] The situation has not greatly improved since. There were very few texts available for reference, and most of these were from foreign sources, not permitted under the legal jurisdiction of Afghan courts and in any case, covering situations different from those in Afghanistan.[46] Unfortunately, much of the history of enacted law in Afghanistan was lost during the war in the destruction of archives, libraries and legal records.[47] Whatever training and judicial structure that does exist in Afghanistan is based on both Shariah and the 1964 constitution. However, in many areas, judges’ personal opinions remain the primary or only source of law.[48]

Absent a functioning system of enacted law, variations on traditional legal systems have grown up in some rural areas since the fall of the Taliban in 2001. An analysis of the effects of the Afghan war on local justice systems is far beyond the scope of this paper, but there is some information available that illustrates trends up to the retaking of power by the Taliban in 2021.

Photograph of Afghan policemen sporting long-barreled rifles in Kabul, Afghanistan, photo by John Burke, 1879-80.

Due to the fact that courts and judicial system are limited to urban areas, most Afghans come into contact with enacted law simply as the rules enforced by the Afghan police. Most police in Afghanistan are made up of reconstituted units from the pre-existing mujahideen hierarchy – the head of a mujahideen unit becomes chief of police, and the foot soldiers become policemen. In many rural areas, judicial officials are also affiliated with political factions and military commanders, or are themselves commanders.[49] In others, district leaders do not even allow court officials to hear cases, or routinely overrule court decisions.[50] Police chiefs may create their own de facto courts, sentence prisoners and operate their own private jails, refusing entry to judges or court officials.[51] Almost all judicial and police activities follow local patron-client relationships rather than official lines of authority. Largely because the central government is so weak, and cannot protect its own officials, Afghans tend to see enacted laws as a supplementary system – subject to extreme corruption and extra-legal interference – that is far less effective in ensuring proper allocation of rights, property, and punishment than traditional law.[52] The opportunities for injustice are great, given that wealth is largely calculated in terms of land, and that out of Afghanistan’s population of 12-18 million before the war, over 5 million became refugees, and land was abandoned for years as a result.

Some Pashtun groups have sought to reinvigorate the jirga system, both as a means of limiting the power of local warlords and military commanders and as a way of minimizing interference by local representatives of central government authority.

An enormous legal gap remains in the fact that women have no independent access to the justice system in rural areas. Along with the task of reconstructing an entire central government and building a “modern” system of regional judicial authority (in many regions for the first time) there must be some way for women to access the justice system. Some observers have suggested restructuring jirgas to allow women greater access and some decision-making power.[53] Rather than attempting to transform the tradition-bound jirga system, other observers have recommended setting up Family Courts as central government entities or creating women’s councils to which women would have easier access.[54] While Afghans are slow to accept change in traditional social behaviors, they are often ready to introduce new models capable of coexisting with older ones.

The war presented Afghanistan with innumerable problems other than the loss of a century’s worth of gains in women’s rights. There has been severe damage to traditional extended family systems that were founded on mutual responsibility and that guaranteed support for all members in times of crisis. Many men have died, and there are hundreds of thousands of wounded former mujahideen, and at least an equal number of injured and maimed women and children. The physical environment has been badly damaged, and over the nearly three decades of constant war there was frequent land redistribution by short term leaders. During the war, for the first time in at least a century, Afghans were not able to rely on their extended families for basic economic sustenance. After the war, many lost clear cut property rights in lands owned by generations before them through legislation that has favored former warlords and parliamentarians. Perhaps most threatening for the future of Afghan democracy, an entire generation grew up knowing nothing but war, missing entirely their opportunities for schooling and for inculcation into civic life.

Traditional and customary Pashtun law in Afghanistan, however ill-suited to certain aspects of modern life and to the goals of government, has the great virtues of familiarity and stability. Because it remains a vital, living tradition, it may be molded by changing circumstances in good ways by thoughtful people, just as it has been influenced for the worse by less thoughtful people in the recent past. Traditional law, as it exists among the Pashtun in Afghanistan, has the capacity to heal and make whole, the characteristics which are valued most in every legal system in the world. In the remaking of Afghanistan, it must at least be accounted for and understood.

Map of Afghanistan showing ethnic distribution and U.S. and coalition troop deployment.

http://www.afghan-network.nci/maps/Afghanistan-Map.pdf (2003)[55]

[1] Excerpted from a poem by Khushal Khan Khattak (1613-1690). Khushan Khan, the most renowned of Pashtun poets, was a tribal leader during the reigns of Shah Jehan and Aurangzeb, Mughal emperors of India, a time when the Pashtun tribes were played against one another and used as mercenary armies by the Mughals. http://www.afghan-network.net/biographies/khattak.html

[2] Ali Banuazizi & Myron Weiner, The Stale, Religion, and Ethnic Politics, Afghanistan, Iran, and Pakistan (1986). No accurate census has been taken in Afghanistan. Census data was subject to manipulation for reasons of internal politics, in order to sustain government claims that the Pashtun were numerically dominant, and in order to maximize the amount of aid received from foreign sources.

[3] The exception is the very brief reign of Bacha Saquao, “son of the water-carrier,” during the civil war that ousted the modernizing King Amanullah Khan at the close of the 1920s.

[4] Indigenous Ethnicities Index: Pashtun, http://www.mongabay.coni/indigenous_ethnicities/asian/Pashtun.html

(2006)

[5] Akbar S. Ahmed, Millennium and Charisma Among Pathans 7 (1976).

[6] Henry Priestly, Afghanistan and its Inhabitants, translated from the “Hayat-i-Afghan ” of Muhamad Hayat Khan 57 (1874).

[7] Charles Lindholm, Generosity and Jealousy, The Swat Pukhtun of Northern Pakistan xiii (1982).

[8] At various points during the 19th century, Afghanistan’s borders were defined by British. Russo-British, and Anglo-Afghan border commissions. In some places, international borders were drawn through densely populated regions, even through towns and villages. As a consequence, the borders, especially in the Pashtun regions of eastern Afghanistan, remained porous, and the border regions difficult to police or control. See Hasan Kawum Kakar, Government and Society in Afghanistan: The Reign of Amir ‘Abd al-Rahman Khan 64 (1979).

[9] Id., at 60.

[10] Pashtunwali: The Way of the Pashtuns, (2000), http://afghanland.com/’culture/pashtunwali.html

[11] I have been told by Pashtun acquaintances that they will not challenge close relatives who have wronged them, by, for example, thieving, but that at the same time they would feel obligated, as honorable Pashtun, to kill or maim a sister who was seen with a man she was not married to. Personal communication, JB Khan, Khwaza Khela, Swat (1987).

[12] This is based upon my experience during years of field research in northern Afghanistan, where although treated as a sort of honorary male in male company, I spent as much time as I could with women, and where both my husband and I were welcomed into the women’s quarters for meals once we were well acquainted with the families.

[13] Inger W. Boesen, Women, Honor and Love: Some Aspects of Pashtun Woman’s Life in Eastern Afghanistan, Afghanistan Journal, Vol. 7, Issue 2, 50 (1980).

[14] Despite the fact that Pashtun women risk death if caught, researcher Inger Boesen found evidence of adulterous affairs during her research in the Kumar Valley, Afghanistan. She also noted that women tended to protect each other by not telling men about other’s extramarital affairs. She also cites the following excerpt from a landai: “Isn’t there a single daring man in this village? My flame-colored pants are burning my thighs!” Id. at 58.

[15] Badal marriage exchanges may be to end a feud or to redress a longstanding grievance. Neamat Nojumi et alii, Afghanistan’s Systems of Justice: Formal, Traditional and Customary, 36 (2004) http://www.gmu.edu/departments/crdc/neamatl.pdf.

[16] Lindholm, supra at 15.

[17] Boesen. supra at 59.

[18] Lindholm, supra at xiii.

[19] The terms pllarina or plarganey apply to smaller family groups, kahol is the term given to extended families.

[20] Lindholm, supra at xxix.

[21] Id. at 9.

[22] A close friend, a well-connected Pashtun in Peshawar, Pakistan, described a very striking instance of the operation of a jirga to me some years ago. (Pashtuns form a majority in sections of Pakistan close to the Afghan border and in the Peshawar area.) The daughter of a high justice in Pakistan’s official court system was gang raped by members of the police. The judge was not only a very prominent person in his own right, but he had also been a close friend of Jinnah, the revered founder of the State of Pakistan. The rape was understood as a calculated political move made by the government and an indirect, but pointed warning to the girl’s close friend Benazir Bhutto, who was at the time an aspiring politician seeking to take her father’s place as President of Pakistan. Benazir’s father, Zulfiquar Ali Bhutto, had been ousted in a military coup and ordered hung by the man who replaced him as President, General Zia Ul-Haq. Zia Ul-Haq went to the judge and personally offered to place all the resources of Pakistan’s justice system at the task of solving the case and bringing the rapists to justice. The judge declined to involve the police and a jirga was convened. Three young men volunteered their services to discover the real criminals, and to bring the information to the tribunal. With the tribunal’s blessing, they would track down and bring every one the criminals to justice (death was the minimum understood punishment). Personal communication, Jahangir Khan, Peshawar (1987).

[23] Through a combination of ignorance, poor intelligence-gathering, and detrimental reliance on Pakistani military and political officials with ideological axes to grind, the U.S. succeeded in choosing the “wrong” side in almost every conflict during the Afghan war, from supporting avowed U.S.-haters like Gulbeddin Hekmatyar (“We NEED mad dogs in Afghanistan.” one CIA operative told me) to failing to adequately support middle ground, non-Pashtun secular leaders (“They’re not tough enough, and only the Pashtun can rule Afghanistan.”). Personal communication, name withheld (1989).

[24] The Taliban’s messianic focus was on their pir, Mullah Muhammad Omar, who (in the abstract sense) performed the role of a Sufi-type leader to whom the Taliban were disciples. Pronouncements by the mullah had the force of the Koran, that is, of revealed text or holy writ. Mullah Omar was not formally educated, and had little knowledge of the formal legal and social constructions found in the Koran. However, one reason so many Pashtun strongly sympathized with the Taliban was that (1) the Taliban were Pashtun and (2) Pashtun social conventions involving the total separation of men and women, excessive pride in religion, and a rather showy correctness of behavior were all embraced by the Taliban

[25] Nojumi, supra at 38.

[26] The name is pronounced, and sometimes written as Abdur Rahman Khan. Kakar, supra at xx.

[27] These traditional patterns were considerably upset after the beginning of the Afghan-Soviet war, when the arrival of young Communists at rural townships resulted in attacks on local government. Afghans were accustomed to only minimal interference from the central government. In 1980, under the Soviet-installed government of Hafizullah Amin, our Kabul landlord, a Pashtun and official under the pre-Soviet government, received an appointment as governor of Jozjan province, a turbulent and Soviet-resistant region in north-western Afghanistan dominated by members of the Turkoman tribe. He was horrified, and told us that he intended to fall ill and take to his bed immediately in order to avoid taking the post. Personal communication, name withheld, Kabul (1980).

[28] Since the late 19th century, provincial governors have served as representatives of the central government rather than as representatives of local inhabitants. (Prior to that time, a governorship was an apprentice-like position for the sons and younger relatives of rulers.) Governors were appointed, not elected or chosen from among local elders. Central government officials generally recognized that a powerful governor with local ties could be a threat to central power, so they tended to appoint either their relatives or ineffective people. Governors served as conduits, implementing central government measures and tunneling taxes and information back to the center. Given Afghanistan’s very limited administrative infrastructure and non-existent social services, governors tended to operate as temporary, minor kings, but were often subject to dismissal and recall. Kakar, supra at 47-51.

[29] Qazi generally made judgments in civil cases and religious matters, while governors ruled on criminal cases. Id. at 50.

[30] Governors were warned by the central government not to interfere with the affairs of the court, and qazis often kept an eye on governors, reporting back on their performance to the center. Id. at 49.

[31] In the early 20th century, the title of the ruler changed from Amir to King.

[32] Kakar, supra at 53-54.

[33] Id. at 54.

[34] By the late 19th century, Afghanistan was divided into ninety-seven districts (lapas) whose boundaries were determined more or less along the lines of tribal lands. Id. at 49.

[35] In Amir Abd’al-Rahman’s time, district-level hakims were often appointed to districts outside of their own place of residence. Kakar notes that the prescient Amir was suspicious of Afghans who had studied abroad and particularly anxious about the influence of the Wahabbi. Id. at 58.

[36] Id. at 50.1 know of no data on the origin of qazi in the 20th century.

[37] Personal communication. Louis Dupree. Kabul (1979).

[38] In addition to the dominant Hanafi School, there are also present Jafari and Ismaili schools of Islamic law. Nojumi, supra at 13.

[39] Afghanistan’s official judicial system contained an ideological divide between judges that studied at the Shariah School, who are largely very conservative, and judges who studied at the School of Law at Kabul University, who generally supported progressive reforms based upon a combination of secular and Islamic law. Nojumi, supra at 16-17.

[40] The circumstances under which it is appropriate to divorce are limited, but the actual mechanism is simply for the man to state, thrice, “I divorce thee.”

[41] Lindholm, supra at xxx.

[42] Boesen, supra at 50-51.

[43] The tomb of a holy man was a place of veneration where ills could be cured (from madness to an inability to conceive). There is a marvelous and perhaps apocryphal story told of a Pashtun community in the N.W.F.F. region of Pakistan that suffered for lack of a saint’s grave, and when a particularly holy person wandered through, they killed him and built a lovely tomb for locals. Personal communication, anonymous informant during the 1970s.

[44] Nojumi, supra at 42.

[45] Id. at 12.

[46] Id at 13.

[47] Copies of the 1976 civil and penal codes were reproduced and distributed starting around 2003, but there was no present mechanism for providing information on new enacted law or government proclamations. Id. at 8.

[48]Id at 14.

[49] Id at 17.

[50] Id at 17.

[51] Id at 20.

[52] Id at 8.

[53] Id at 4.

[54] Id.

[55] Map of Afghanistan showing ethnic distribution and U.S. and coalition troop deployment. http://www.afghan-network.nci/maps/Afghanistan-Map.pdf (2003)

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