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.


  • 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.

Related Publications

The Latest @ USIP: Reclaiming Human Rights in Afghanistan

The Latest @ USIP: Reclaiming Human Rights in Afghanistan

Wednesday, April 17, 2024

By: Fatima Gailani

Since taking power in 2021, the Taliban have imposed their own interpretation of Islamic law onto the people of Afghanistan and consistently rolled back human rights protections — especially for women and girls — all while the country struggles to recover from decades of conflict and economic crisis. USIP spoke with Fatima Gailani, the former president of the Afghan Red Crescent Society, about the various ways Afghans can put pressure on the Taliban to reclaim their rights and demand a better future.

Type: Blog

GenderHuman Rights

Asfandyar Mir on Why ISIS-K Attacked Moscow

Asfandyar Mir on Why ISIS-K Attacked Moscow

Monday, April 1, 2024

By: Asfandyar Mir, Ph.D.

ISIS-K’s recent attack on the Russian capital was, in part, intended to assert the organization’s growing capacity to inflict terror beyond its home base of Afghanistan. “By reaching Moscow, ISIS-K is trying to signal it has the geographic reach to hit anywhere in the world,” says USIP’s Asfandyar Mir.

Type: Podcast

Moscow Concert Hall Attack Will Have Far-Reaching Impact

Moscow Concert Hall Attack Will Have Far-Reaching Impact

Wednesday, March 27, 2024

By: Mary Glantz, Ph.D.;  Gavin Helf, Ph.D.;  Asfandyar Mir, Ph.D.;  Andrew Watkins

On Friday, terrorists attacked the Crocus City Hall outside Moscow leaving 140 people dead and 80 others critically wounded. Soon after, the Islamic State claimed responsibility for the attack. The terrorist group, which is headquartered in Iraq and Syria, has several branches, including in South and Central Asia. Press reports suggest the U.S. government believes the Afghanistan-based affiliate of the Islamic State, ISIS-Khorasan (ISIS-K), was behind the attack. The Biden administration has publicly noted that it had warned the Russian government of the terrorism threat in early March in line with the procedure of “Duty to Warn.”

Type: Question and Answer

Global Policy

The Challenges Facing Afghans with Disabilities

The Challenges Facing Afghans with Disabilities

Thursday, February 29, 2024

By: Belquis Ahmadi

In Afghanistan, obtaining accurate data on the number of persons with disabilities — including gender-disaggregated information — has always been a challenging endeavor. But based on the data we do have, it’s clear that more than four decades of violent conflict have left a considerable portion of the Afghan population grappling with various forms of disabilities, both war-related and otherwise. And the pervasive lack of protective mechanisms, social awareness and empathy surrounding disability continue to pose formidable challenges for individuals with disabilities, with women being disproportionately affected.

Type: Analysis

GenderHuman Rights

View All Publications