As Afghanistan's nascent democracy works to establish the rule of law across the country, it finds itself contending with the ways that Islamic law converges and diverges from the tribal norms that shape the settling of disputes outside Kabul. Based on surveys conducted in Afghanistan, this report examines the points of tension and agreement between Islamic and customary laws, looking into both of their pasts to suggest a way forward for the Afghan state, particularly in granting greater rights and protections to women.

Summary

  • Afghanistan’s legal system has drawn on a mix of customary tribal law, primarily derived from the Pashtun community’s code of Pashtunwali and Islamic legal traditions valued for their universal and unifying characteristics.
  • Despite popular conceptions that Islamic law holds a supreme legal status, field surveys indicate that in practice, its provisions are often disregarded in favor of customary law intended to maintain community consensus. This consensus is often not between equals but is shaped by the relative authority of the persons resolving the dispute.
  • A particular concerning outcome is the marginalization of Afghan women, despite Islamic legal precepts that enshrine them with individual rights, particularly in matters of family, inheritance, and marriage law that are not extended under Pashtunwali.
  • A significant number of survey respondents voiced concerns about the credibility of Islamic religious scholars (ulama) participating in resolving disputes at the informal level, citing poor levels of training in Islamic legal precepts and concerns over their neutrality.
  • Despite this finding, informal justice actors nonetheless expressed openness to overturning prevailing customary law and signaled their willingness to take a more Islamic legal approach to resolving disputes if they were educated by the particulars of Islamic law, especially as it pertained to women and understanding gender-related norms.
  • Ultimately, religious leaders are in a unique position of wielding a supreme measure of authority on issues related to law and morality and can potentially play a role in pushing for legal reforms.

About the Report

This report is part of the United States Institute of Peace’s (USIP) ongoing effort to understand the pluralist legal system of Afghanistan. It examines, compares, and contrasts Islamic law with traditional forms of justice in an attempt to elucidate how such rule of law approaches interact as well as provide a fuller understanding of each system to better guide rule of law practice, policy and change.

About the Author

Hamid Khan is the deputy director of the Rule of Law Collaborative at the University of South Carolina. He previously served as a senior rule of law program officer with the Center for Governance, Law and Society at USIP and formerly was a professorial lecturer in Islamic law at the George Washington University Law School.

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