Complementarity and Conflict: State, Islamic, and Customary Justice in Afghanistan

Abstract

In Afghanistan, legal pluralism is not mere theory: it is an omnipresent reality. The major normative sources – state statutory law, Islamic shari‘a, and unwritten customary law such as the pashtunwali – have developed in fundamentally different historical and cultural contexts. Even today, various authorities continue to develop them, and competing institutions apply them. In the best scenario they complement each other, but many cases reveal fundamental divergence. Two basic tensions mark the landscape. First, there is a precarious relationship between state-made law – in particular, the Constitution, statutes, and international law – and shari‘a, which flows from religious sources. Both state law and shari‘a constitute the normative basis of the state jurisprudence. Whereas the Constitution asserts that religious law is subsidiary to state law, in practice the opposite is usually true. Second, in Afghanistan, the state’s extremely weak and very unpopular justice system must contend with far more effective non-state institutions, especially tribal councils that resolve disputes at the local level. In recent years, the state justice system and tribal councils have faced competition from an unlikely source. The Taliban’s shadow rule over parts of the country has allowed the formation of a network of mobile Taliban courts, whose verdicts are based on a fundamentalist interpretation of shari‘a. Due to this enormous diversity, one cannot rightly speak of a regulatory system or even a legal order. The complex reality is better described as a “patchwork” of norms. This article assesses the coexistence and interaction of the various norm complexes from the standpoint of legal theory. The emphasis will especially be on mechanisms, institutions, or informal practices used in the case of a conflict of norms. Several concrete cases drawn from criminal law allow an evaluation of the – presumably minimal – effectiveness of these regimes in the resolution of legal conflicts. Therefore, the following analysis is intended to provide more than a simple description of the current legal situation.