Afghanistan – Reconciling State and Customary Legal Systems

Nearly 30 years of war and conflict in Afghanistan has left the country’s already weak legal system in total disarray. The question on the minds of many policy-makers, academics and politicians – both local and international – is how to structure a legal system conducive to stability and accountability. Afghanistan has never had a strong legal system. Officially, the country is a civilian jurisdiction, whose civil code is strongly influenced by Islamic law, particularly the Hanafi school of thought. The reality is that the country exhibits a complex relationship between civilian, Islamic, and – most significantly – customary Law (1). Rather than treating customary Law as an impediment to progress, it should be viewed in terms of its potential for creating greater inclusion into the overall legal system, particularly for rural Afghans.

Increasingly, recent scholarship on Afghanistan has suggested that the way forward for the country’s legal system is greater cooperation between state and customary laws (2). This assertion simply reflects the reality that most Afghans, particularly those in rural areas, have far more trust in legal mechanisms at the local level than at the state level. In a 2008 survey done by the Asian Foundation, less than half of respondents trusted state courts, versus customary mechanisms, which have the support of the overwhelming majority of respondents. As of 2007, up to 80% of legal claims were being handled by customary dispute…

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