The question of how and where Islam should fit into future legal and political frameworks has emerged as a major sticking point in the talks between the Taliban and the Afghan government in Qatar. While the government’s chief negotiator recently reported some progress on a key issue—namely how to meet the Taliban’s demand that the Hanafi school of Sunni jurisprudence serve as the principal source of legislation while simultaneously protecting the rights of religious minority groups such as the Shia Hazaras—there are likely to be further obstacles down the road. How this question is resolved will be closely watched by Afghans, who want to ensure their hard-won rights are not sacrificed for the sake of a deal with the Taliban—Afghan women in particular have much at stake. The international community will similarly scrutinize the outcome, and their engagement with Afghanistan after the talks is expected to be conditioned on the contours of any political settlement.

Abdul Salam Hanafi, a member of the Taliban delegation, speaks with reporters at the peace talks with the Afghan government in Doha, Qatar, on Saturday, Sept. 12, 2020. (Mujib Mashal/The New York Times)
Abdul Salam Hanafi, a member of the Taliban delegation, speaks with reporters at the peace talks with the Afghan government in Doha, Qatar, on Saturday, Sept. 12, 2020. (Mujib Mashal/The New York Times)

At the heart of the impasse lie contrasting worldviews: the Taliban seeking a political and legal order directly informed by its own understanding of local Islamic tradition and an Afghan government looking to ensure the country adheres to norms, including core democratic rights, that will allow it to remain “interoperable” with the rest of the world, not least of all for purposes of diplomatic relations, trade, and development. So how best to move forward from here? Do other recent experiences involving negotiations over the constitutional role of Islam in the context of peacebuilding and political transition provide relevant lessons or models?

Islam in Emerging Constitutional Contexts

It is difficult to identify another case that directly parallels the current situation in Afghanistan. There are certainly examples of Islamist insurgency groups entering into peace negotiations, but not from a position of relative empowerment. The separatist movement in Aceh, Indonesia, for example, resulted in special status for Islamic law but limited to the northern tip of Sumatra.

The transitions in the Arab world that followed the 2010-2011 popular uprisings and revolutions in Tunisia and Egypt saw a fair share of political contestation over the role of Islam under new national constitutional arrangements. And while Sunni Islamists such as Tunisia’s Ennahda party and the Egyptian Muslim Brotherhood were key players in those arenas, the context of political Islam in these countries is very different from that of Afghanistan where Islamists waged an insurgency and then entered peace talks. Arab Islamists had already articulated and demonstrated some level of commitment to procedural democracy—which the Taliban has decidedly not. In Tunisia, where questions about Islam’s role in the political system seem to have been resolved most successfully, Ennahda’s leadership— facing politically empowered secular interlocutors—chose to avoid emphasizing the centrality of Sharia law in the drafting of a new constitution.

The politics of Islam in Egypt’s post-revolutionary constitutional process in 2012 were more heated, producing a series of strategically vague provisions that sought to satisfy disparate political constituencies but left key questions unanswered. This is perhaps closer to what we might expect to emerge from any deal between the Taliban and the Afghan government. Adding constitutional language to the effect that Islam is the principle source of legislation is a relatively straightforward matter. The constitutions of many Muslim-majority countries contain such provisions, including Afghanistan’s current constitution which also bestows a special status on Hanafi jurisprudence (although only with respect to issues not covered elsewhere in the constitution). What such provisions mean in practice, however, varies enormously from country to country depending on history, politics, and the relationship between the state and religious authorities.

The challenge here stems in large part from the fact that Islam is a vast, diverse, and, with respect to religious authority (especially within its Sunni variant), de-centralized system of belief, doctrine, and law practiced by some 1.7 billion people across dozens of countries and regions. To say that Islam is the principal source of legislation tells us almost nothing unless we are also told something about who will interpret Islam, and how. When Islamists in the 2012 Egyptian constitutional process sought through that document’s Article 219 to address this issue, the best they could achieve was another vague formulation: “The principles of Islamic Sharia include general evidence, foundational rules, rules of jurisprudence, and credible sources accepted in Sunni doctrines and by the larger community.”

The Taliban and Hanafism

At first glance the Afghanistan situation might seem more straightforward since the Taliban recognizes only a single school of Sunni jurisprudence, the tradition named for the eighth century scholar Imam Abu Hanifa, as legitimate. However, Hanafism is probably the single most widely followed school of legal thought in contemporary Islam, dominant not only in South and South Central Asia but also much of Eurasia, the Balkans, Egypt, and Turkey (where it formed the official legal doctrine of the Ottoman Empire). The Taliban’s primary reference point is the Hanafi-based Deoband school founded in India in the mid-19th century. But even within this more geographically and culturally confined Hanafi movement we find enormous diversity.

As the work of scholars such as Muhammad Qasim Zaman has shown, Deobandi scholars have been “custodians of change” as much as guardians of stultified medievalism—their views and jurisprudence evolving with the times.

While Hanafi legal sources are certainly replete with highly conservative, rigid, and austere interpretations of religion, one can also find in them plenty of evidence supporting more flexible and pluralistic approaches to Islamic law—meaning that the Taliban may wish to consider whether their insistence on Hanafism could backfire at some point. For example, Hanafi law is full of precedents that establish rather expansive rights for minority communities.

When it comes to the current Afghan negotiations, what this means in practical terms is that it may be best to refrain from trying to find Hanafi-based solutions to various issues to include in the agreement and instead incorporate specific but minimal references to religion. This is because, ultimately, what a constitution says about Islam may be less important than what it specifies with respect to institutions and due process.

For example, with the current negotiations one can imagine a scenario whereby forward momentum depends on agreeing that any new constitution should indeed enshrine Hanafi jurisprudence as the country’s principle source of legislation (per Taliban requirements) while also incorporating language guaranteeing full and equal rights for all citizens including women and minorities (per the government). Such an arrangement would of course involve the very high likelihood of these two provisions finding themselves at odds with each other in day-to-day life and politics. What matters, then, are the mechanisms by which such disputes are resolved. Determining the nature and specification of those institutions in any agreement and future constitution is where the energy should be focused and not the question of whether Islam or any particular form of Islam is specified as the paramount reference point for legislation.

The case of Iran is illustrative here. While the constitution of the Islamic Republic of Iran gives precedence to the Ja’fari school of Shia jurisprudence, this fact has little to do with the ability of conservative clerics to dominate affairs of state. What matters is how political power as well as checks and balances (or lack thereof) are wired into the system. In the case of Iran this means that in any situation where the presidency or parliament (both popularly elected) find themselves at odds with the Supreme Leader, the latter will prevail due to his dominance of the body (the so-called “Expediency Council”) charged with resolving such disputes per constitutional statute. No aspect of the Iranian state’s hierarchy is based on standard Ja’fari jurisprudence or conventional Shia political thought; they all derive from political maneuvering by followers of Khomeini who adopted and expanded the highly contested theory of “vilayet-e faqih” (or Guardianship of the Jurisconsult), which made real what was previously only a theoretical assertion of clerical power.

This comparative example and the track record of the Taliban negotiations to date suggest two principles that will be important moving forward. First, given the tendency of the Taliban to reject as Western impositions even those aspects of current political and legal arrangements—including human rights provisions—that seem to enjoy support from broad swaths of society society, the process for creating any new constitution should be broad-based, locally owned, and grounded in Afghan tradition. Second, with respect to ensuring legitimate governance and longer term stability, the focus needs to be on devising constitutional arrangements that allow for the equitable resolution of differences between various groups in society (and competing political structures), while recognizing the inevitability that some of these will have a more religious character.

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