https://orcid.org/0000-0003-1071-8756
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Abstract
This article explores several ethnographies (both academic and para-academic) of Afghanistan’s traditional justice (jirgas and shuras) in order to illuminate contrasts of their conceptual approaches at different periods of the country’s history. In this genealogy we identify ethnographic observations of the levels at which various sociolegal authorities operate and which often elude standard international ontology. The article takes the legal ethnographies as signposts for a conceptual reframing of the legal situation in the country by drawing upon Pospisil’s legal-anthropological conceptual approach which offers an alternative to generic global legal models based on binary oppositions such as formal–informal, state–non-state or official–traditional. This reinterpretation achieves a more accurate non-dualistic understanding of Afghanistan’s traditional justice at the ethnographic micro-level. The discussion of Afghanistan’s legal ethnographies leads to renewed insights into Pospisil’s anthropological theory of law.
Notes
1 Some segments of this article were presented at the conference of the Institute for Social and Cultural Anthropology, Ludwig–Maximilians–Universität, “Human Rights Work and Transnational Legal Activism: Limits and Potential”, which took place in Munich on 8–9 February 2019, at the workshop of EASA’s Anthropology of Humanitarianism Network (AHN) “Intersections of Humanitarianism” which took place in Goettingen 1–3 November 2019, and at the Melbourne Law School workshop “Contested Legalities: Translocal Encounters with Transnational Law” which was held online, 8–9 July 2021. We would like to thank to participants of these workshops and particularly Emma Nyhan for their helpful comments as well as the anonymous reviewers for helping us to improve this paper and doctoral student Martina Janeckova for the help with technical aspects of the manuscript.
2 For an overview of international conventions and treaties which Afghanistan has ratified and is accordingly bound see, e.g., Barfield (Citation2008, 350, at footnote 10).
3 Wardak explains that “The phrase ‘Afghan legal traditions’ [appeared] in the context of the Bonn Agreement [and] is elaborated by UNAMA (Citation2002, 5) in this way: ‘The issue of Afghan legal tradition refers to the customs, values and sense of justice acceptable to and revered by the people of Afghanistan. Justice, in the end, is what the community as a whole accepts as fair and satisfactory in the case of dispute or conflict, not what the rulers perceive it to be” (Wardak Citation2004, 333).
4 In matters of personal status of Shiite Afghans, the Shiite Ja’fari school of Islamic legal interpretation should be applied by state courts (Rastin-Tehrani and Yassari (Citation2012, 16).
5 Wimpelmann points out, with reference to Cramer and Goodhand (Citation2011), that this “something of a ‘factoid’” is “information based on soft opinion and a very narrow evidence base translated into fact by constant repetition” (Wimpelmann Citation2013b, 411). For more realistic assessments see e.g. Wardak, Saba and Kazem who claim that “the percentages that trusted state courts versus shuras are equal [nevertheless] the overwhelming majority (68%) trusted informal institutions and traditional figures of authority most” (Wardak, Saba and Kazem Citation2007, 74).
6 This is The Law on Dispute Resolution, Shuras and Jigras. For details of the negotiation process see also Wardak (Citation2011, 423–424).
7 Both Islamic legal principles and Afghan legal traditions are terms which may in fact refer to important regulations and principles concerning the rights of victims and the question of impunity. Jirgas could, for example, reinforce the Islamic legal principle that “only victims have the right to forgive perpetrators,” meaning that the victims’ agency should neither be usurped by any authority or legislation be it the State or any other organisation in power, nor purely individualised (Sajjad 2009, 500; Nadery Citation2007, 177–178).
8 For a historical overview of Afghanistan’s legal modernisation and state formation, see, e.g Rahimi (2017), or Hopkins (Citation2008, particularly 82–109).
9 For the literature about the conflict in Afghanistan before 2001 see, e.g., Sidky (Citation2007).
10 A more needed anthropological scepticism would ask whether, when applying the entire ontological distinction of formal–informal justice, we are not getting the law of the Afghan Other quite right. The framing of the mutual collaboration between the formal and the informal justice in terms of “hybridity” or “hybrid order” does not seem to be entirely apt (cf. Wardak Citation2011, 424), particularly while an alternative conceptualisation of the alterity of law can be found in deeper layers of the legal-ethnographic data that manifest a gradation of multiple and diverse translocal and intersocietal levels at which dispute resolution bodies operate. These on-the ground conceptualisations could be related to a single anthropological concept of “law” in which both the state and the traditional justice could be located equally without the application of any great divides.
11 Although the traditional legal authorities evince extraordinarily little hierarchy to outside observers, Yousufzai and Gohar take a much closer look at jirgas’ processes, within which spingiris “act as judges and other participants are like jurists,” including a traditional equivalent of attorneys and legal representation of the parties (ibid., 20; cf. McAuliffe Citation2013, 240). Even though individual judges are neither formally nor symbolically distinguished from surrounding people all sitting in the jirga circle, they could be sometimes recognised as those “playing mysteriously with sets of small stones lying before them like a chess board” or directing the process by granting the right to speak to others as well as interrupting them (Yousufzai and Gohar Citation2012, 19–20).
12 Pospisil’s argument is more complex: the principles abstracted from an authority’s decisions constitute a legal system persuaded by this same authority. Pospisil nevertheless considers legal decisions to be the most reliable source of law next to the “explicit abstract rules … codified or remembered” and the “actual behaviour of the people” (Pospisil Citation1978b, 15). And he claims that “for meaningful anthropological research an intensive study of all three cultural categories is a necessity” (ibid.).
13 This article mentions merely such dimensions of Pospisil’s comparative theory of law which are directly related to the issue analysed here.
14 A detailed methodology of data collection during Elphinstone’s mission to Kabul as well as a plan of each team member’s agenda (like geography, climate, agriculture, husbandry, trade, history and government) may be found in the preface to An Account. It was produced when Elphinstone mostly resided in Peshawar and is primarily based on hearsay from native informants operating in the south-eastern Afghanistan (see also Hanifi Citation2019 and Hanifi Jamil Citation2019).
15 The most renown comparative account on diverse cultural variants of the law of hospitality is Pitt-Rivers (Citation2012).