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 mechanisms. Sharma & Sen show why customary mechanisms yield so much trust and confidence:

“First, it is focused on substance than on procedure. Second, it aims at compensation and reconciliation and not at punishment. Third, the concerned parties believe that justice is being done.” (p. 49)

Allowing customary law to operate within a state system is not an entirely new concept. Several other countries have legal systems where authority is shared with customary rule of law. In Bangladesh, India and Malaysia, certain indigenous communities conduct their legal affairs through customary legal mechanisms. The scope of such affairs is usually confined to civil, property, and marriage issues as well as minor criminal matters. In India, this limited legal autonomy is constitutionally entrenched. Similarly, South Africa has set up a Law Reform Commission that has been actively exploring, and facilitating (albeit cautiously), interaction between state and customary legal systems. Scholarship on legal pluralism within Africa is a rich domain, with literature spanning the better part of the last century (3).

Scholarship on Afghanistan’s legal system may not have the same depth as in other areas of world; however, a wealth of literature on the potential of legal pluralistic approaches is now available. Drawing from this literature is not only instructive in terms of the success stories, but also in terms of the dilemmas that must be addressed when state and customary legal systems clash. Two such points of conflict are worth mentioning:

1. Normally customary legal systems function “under” (or within) the state legal system. The interface of these two systems regularly challenges those engaged in the process. State law, particularly in Afghanistan which has a civil code, aspires to consistency and predictability in the laws applied. This understanding of law generally contrasts with customary law, which allows the various parties to negotiate and find a solution which best suits their needs. One approach suggested for facilitating the interaction of the two systems is to codify customary law when possible, thus adding a level of consistency. This approach has been sharply criticized, as to codify customary law would be to add rigidity, altering its very essences of fluidity and adaptability (4). Moreover, in a country where the vast majority of the population is illiterate, one must question the practicality of adding in another legal text to the growing pile of written laws already in existence. The other approach is to allow customary law to function as it does with the caveat that it is governed by the country’s constitution. Thus, the state would play a role in ensuring that the customary laws do not contravene broad constitutional principles. However, this approach may give customary mechanisms more control (and less accountability and consistency) than some may find desirable.
2. Customary legal norms must be cautiously reconciled with human rights practices. One should approach customary law with the intention of respecting diverse normative values. Nonetheless, gross violation of rights, particularly those committed against women, must also be added. Customary practices vary according to region. For example, in some regions the swapping of women between families is as accepted a practice as recompense for major crimes (i.e. murder). Practices which constitute human rights violations must be circumscribed accordingly if customary mechanisms are to be given authority.

The task of starting nearly from scratch and setting up a functional legal system in Afghanistan may appear daunting. However, co-opting the assistance of customary legal mechanisms that are already in place, while remaining cognizant of the issues which normally arise when aspiring to legal pluralism may provide a fruitful avenue for progress.

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1: Much discussion and controversy in modern scholarship surrounds the use of the term “customary” law, in part because it raises the image of an archaic social order. At times, it is alternately called informal law, chthonic law, or tribal law.

2: Amongst those who have written on this topic are: USIP, Wardak, and the Norwegian Refugee Council.

3: Some notable individuals who have contributed to the relevant scholarly discourse: Gluckman, Bennett, and Bekker.

4: T. W. Bennett and T. Vermeulen, Codification of Customary Law, Journal of African Law, 1980, Vol. 24 No. 8, p. 206