The Battle Over Afghanistan’s Legal System


Imagine that someone stole your wallet. You liked that wallet, you kept important things in your wallet, and you’re also pretty annoyed with the person who had the nerve to steal it in the first place. You find the culprit and take them to court, and he or she is ultimately forced to return your wallet, in addition to other reparations.

Most of us expect this consistency from our legal system: Action X will result in punishment Y based on written law. But we forget that this formula can’t be universally applied. In Afghanistan, most of the population relies on traditional law rooted in the tribal system, while the state legal system has only secondary authority. This traditional system prioritizes reconciliation over consistency, opting to sit you down with the wallet thief and work out your differences rather than imposing a preset punishment. The international community has instead pushed for consistency over reconciliation, and in my recent travels to Afghanistan, I witnessed firsthand that this approach cannot and will not promote effective rule of law in Afghanistan. As the U.S. combat mission ends and international forces continue to draw down, it will be all the more important for Afghanistan to have an effective and stable legal system. But what if that version of a legal system, that way of dealing with wallet thieves, simply isn’t accepted by the Afghan population?

It is understandable that the international community has pushed for its own form of law. A codified legal system promotes order and consistency, which will in turn promote peace in the long-term. But this system requires certain standards if it is to be successful – the basic government functionality and legal norms that we take for granted don’t exist in Afghanistan. It is a well-intentioned action with little chance of actual success. You can give me a set of car keys and tell me to drive, but if I have a car that doesn’t work with those keys, then we’ll both be wasting our time.

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The international community has been wasting its time focusing on implementing its own version of rule of law in Afghanistan. This can and should be the long-term goal for the country, but in the meantime both local and international forces need to take a more pragmatic approach to account for the current system. While the state legal system is an option in most areas of the country, it is taken as exactly that: an option. The Afghan government has succeeded in pushing many criminal cases into the state system, but the vast majority of civil disputes are handled locally within the tribal legal system in courts called jirgas. These courts are led by tribal elders and are designed to settle disputes in a way that doesn’t disrupt the community and prevents family feuds while adhering to Islamic law. This system is a natural choice for smaller communities where families live side by side for generations, and where peaceful coexistence is critical. While Afghanistan has developed a handful of large cities, the rest of the country consists of smaller towns and villages, where the jirgas are still the most trusted source of conflict resolution.

A few weeks ago, I was in Kabul conducting research on border security. I interviewed international police training forces, rule of law experts, and Afghan legal professionals, and each source gave a unique perspective on the challenges to developing an effective policing and law training framework. The international trainers spoke of the technical difficulties of effectively transferring their knowledge and skillset to the Afghans with limited time and resources. The rule of law experts described the challenges of making the Afghan state legal system operational and uncorrupt. But the Afghans expressed their exasperation that these measures, while well intentioned, were working to fix a system that few Afghans trusted or used.

Initially, I pushed back.

“Sure, it will take time and won’t be perfect, but what about when you have of a strong, codified legal system? Don’t you want the structure? The consistency?” 

“Why would we want that?”

“Structure! Consistency! Codified legal systems!” 

“…but why?”

The debates would continue to circle, and I finally gained a better handle on the issue when I spoke to the law society at the American University in Afghanistan (AUAF). Some of the students were from Kabul, but many were from smaller Afghan towns, and they were able to give me personal anecdotes combined with their legal studies to describe the complexity of the law in Afghanistan. What I hadn’t initially understood was just how critical the question “but why?” was to the larger debate. It summed up years of frustrated international efforts. That work has tried to replicate a fully developed legal system in a country where such a model is not only unrealistic, but unimaginable to the population that is expected to use it. The Western vision of a perfect legal system simply doesn’t satisfy Afghan needs because they want something different from the law than their international legal trainers do. Westerners look for organization, structure, and consistency in the application of the law. Afghans require peace within their small communities. A foreign system cannot ensure that peace in the way that the jirgas can.

Traditionally, the international community has been reluctant to work with the tribal system because the jirgas and tribal elders make their rulings based on Islamic law. Religious governance is not a popular agenda for governments like the US and Western European states, and Sharia law in particular is politically sticky. This doesn’t mean that we throw up our hands and leave tribal law untouched as we attempt to implement a state legal system. As Afghanistan continues to develop and modernize, state law will take an increasingly important role, and it must be prepared for that responsibility. But until that day comes, Afghans will continue to work with the primary traditional systems.

As the international community shifts functions from active combat to supportive training, it must work to ensure that jirgas are not constantly dominated by the same powerful individuals or unfriendly forces like the Taliban. It must not only acknowledge the fact that jirgas are widely used, but also appreciate why they are used so that it can see the divide between Afghan and international expectations of a legal system. The remaining international forces and Afghan government will continue to work towards a codified, consistent structure of law. But until the Afghan population is ready to make use of that form of law, the international community must account for existing Afghan traditions in order to successfully implement its own legal ideals.

Schuyler Moore is a senior at Harvard University. She taught at a school in Afghanistan in 2013 and briefly returned to Kabul in November 2014 to conduct research on border security. She currently studies international relations and most recently worked as an Academic Intern for the Near East South Asia Center for Strategic Studies in Washington, D.C.

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