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.

Related Publications

What to Expect from the Doha Conference on Afghanistan

What to Expect from the Doha Conference on Afghanistan

Thursday, February 15, 2024

By: Kate Bateman;  Andrew Watkins

On February 18-19, United Nations Secretary-General Antonio Guterres will convene a meeting on Afghanistan in Doha to discuss the ongoing humanitarian and human rights crises and the recent report on a way forward by U.N. Special Coordinator for Afghanistan Feridun Sinirlioğlu. Special envoys from U.N. member states and international organizations will attend; representatives from Afghan civil society, women’s groups and Taliban officials have also been invited. The conference is a critical, high-level opportunity for donors and the region to chart next steps on how to improve the situation in Afghanistan and engage with the Taliban regime.

Type: Analysis

Global Policy

The Latest @ USIP: U.N. Engagement in Afghanistan

The Latest @ USIP: U.N. Engagement in Afghanistan

Wednesday, December 20, 2023

By: Kanni Wignaraja

While some parts of the Afghan economy managed to stabilize in 2023, poverty continued to increase and now stands at 69 percent of the population. Kanni Wignaraja, director for Asia and the Pacific at the U.N. Development Programme, discusses UNDP’s efforts to build resilience in local markets and promote women-owned enterprises in Afghanistan; explores ways to navigate relations with the Taliban; and examines how the decline in international aid is affecting humanitarian efforts in the country.

Type: Blog

EconomicsHuman Rights

How the Taliban Enables Violence Against Women

How the Taliban Enables Violence Against Women

Thursday, December 7, 2023

By: Belquis Ahmadi

In just 28 months, the Taliban have dismantled Afghan women’s and girls’ rights — imposing draconian restrictions regarding their education, employment and freedom of movement. Any perceived violation of these oppressive policies is often met with harassment, intimidation, and verbal and physical abuse orchestrated by the Taliban’s Ministry of Vice and Virtue. And when women are detained by authorities, they have been subjected to cruel treatment, including torture.

Type: Analysis

GenderConflict Analysis & Prevention

Afghanistan’s Economy Once Again Nears the Precipice

Afghanistan’s Economy Once Again Nears the Precipice

Friday, November 17, 2023

By: Belquis Ahmadi;  William Byrd, Ph.D.;  Scott Worden

More than two years into Taliban rule, Afghanistan remains one of the poorest countries in the world with some of the highest humanitarian needs. The situation has shown some signs of stabilizing over the last year — but many Afghan households are still struggling to procure basic needs, and many women have been driven from the workforce altogether. Unfortunately, financial troubles loom ahead, and the already beleaguered Afghan economy is now projected to decline. Combined with population growth and the influx of thousands of Afghans forced to return from neighboring Pakistan, this is a recipe for increased humanitarian need over the longer term in the absence of major structural and political reforms.

Type: Analysis

EconomicsHuman Rights

View All Publications