Reading legal ethnographies to re-map legal pluralism: a Pospisilian corrective to the prevailing dichotomous description of Afghanistan’s legal order

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.

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.

Keywords:

• Comparative law
• legal anthropology
• legal pluralism
• hybridity
• informal justice
• traditional justice
• non-state law
• customary law
• Afghanistan
• Pospisil
• translocal legality

Introduction

This article begins with the observation that while the scholarship on the legal pluralism in Afghanistan has been mostly produced within cross-cultural situations as well as institutionalised transnational environments both within and beyond the country, it has not yet been framed by conceptual equipment which would be adequate to such a context. Sociological, social-anthropological and legal-theoretical conceptual models which have been employed have proved to be vague at best, reducing significant sociolegal nuances of Afghanistan’s legal pluralism down to merely three sources of law (state legislation, Sharia, and customary law) or three types of legal authorities (state judiciary, Taliban’s sharia courts, and traditional councils). Instead of these models we suggest that the expert knowledge production on the country’s legal pluralism requires a more sophisticated conceptual approach to law which is specifically designed for navigating in cross-cultural settings. We will offer Pospisil’s anthropological comparative concept of law, and legal pluralism (see, e.g. Pospisil 1967) as one example.

Huge discrepancies of the local understanding of law in the country from global generic models of traditional justice have been evident at least since the beginning of the twenty-first century. These models suggest that Afghanistan’s traditional justice is the Other of the state legality. This position, in our view, fails thoughtful analysis. Rather, all kinds of legal systems and authorities in the country should be conceptually grasped by a single, non-dualistic concept of law and legal authority, a step which, however, must be substantiated by concrete empirical observations.

Various ethnographies and para-academic reports on traditional justice are therefore explored in this article in order to detect contrasts of their conceptual approaches offered at different periods of the country’s history from early colonial encounters of the nineteenth century through to the recent transitional period. The identified Western understandings, perceptions, and biases as well as what eludes them help us to determine legal-ethnographic indications which could serve, with help of Pospisil’s legal-anthropological conceptual approach, as a foundation for a more accurate conceptualisation of traditional justice.

The method used explores ethnographies and para-academic reports of Afghanistan’s traditional justice (jirgas and shuras) in order to identify legal-ethnographic observations of levels at which jirgas and other sociolegal authorities operate. Those data then serve as anchor points for the application of Pospisil’s comparative concept of law. That analysis will show that Pospisil’s legal-anthropological approach (and legal levels in particular) is more close-fitting to the micro-observations of Afghanistan’s legal ethnographies, and at the same time provides an alternative to the binary distinctions such as formal–informal, and to the dualist and hybrid conceptual models of linkages between them. This article is nevertheless not an attempt to transcend those models. They are simply employed by various actors in their interpretative strategies, and so while representing a part of our discipline they are not an analytical framework which should be binding. These models could nevertheless become obsolete in the inquiry which proceeds from the micro-observation that “law does not float freely in a society but, through the bond of the authorities [and] is tied to the pattern of the society’s subgroups” (Pospisil 1978a, 105).

Most of the recent scholarship on Afghanistan is concerned with widespread inconsistencies between the demand for compliance with international standards such as human rights or women’s rights – which Afghanistan is formally a party to² – and local processes of administering justice. While this ethical concern itself is, in our view, entirely appropriate, its premise, an inherent state-centrism, is somewhat inadequate. This point should not go unreflected particularly because it poses an important limitation to the imaginative understanding of various subnational foras and legalities in Afghanistan. It should be especially mentioned that these foras do not merely belong to some communities/localities (and their “cultures”), many of them may be seen also as trans-societal and translocal, as will be discussed below. The lack of any known mechanism for adherence to international standards in such subnational contexts highlights, in our view, the necessity of their intense study. Starting from the actual diversity of sociolegal authorities on the ground may help to more accurately determine, analytically and empirically, the effective channels of the internalisation of legal ideals within the population rather than starting the study from normative standards.

It should also be mentioned that, in addition to the traditional ethnographies, there used to be another approach towards Afghanistan’s legal landscape which usually intermingled, entangled, or may be seen as layers of signification about the same information: reports about on-the-ground situations from mostly Western research organisations that are primarily directed at audiences beyond the country. While intended for external consumption, most of this production takes for granted the “splitting of the legal system into an official law and an unofficial law” (Lau 2003, 7). These reports may also travel back and influence, for instance, the country’s legal reform. This approach, for a lack of better term, we call “para-academic.” The legal-ethnographic approach, on the other hand, primarily attempts to understand Afghanistan’s legal particularities in terms of their home world. It has not yet culminated in codification of a distinctive theoretical perspective which would be able to catch legal-cultural data in an ethnographically adequate way. To explore it we constructed a genealogical outline – selective of course and not the only one possible – of Afghanistan’s legal ethnographies from early colonial encounters of the nineteenth century through to the recent transitional period before the reestablishment of Taliban (part two of this article).

Using these ethnographies of Afghanistan’s traditional justice for the suggested legal-anthropological reconceptualization could be helpful in various contexts. The lessons may be highlighted as a form of navigation, for instance, in the field of transitional justice and rule-of-law reconstruction wherever the encounter with particularities of traditional justice comes into play (Winterbotham 2010; McAuliffe 2013; Nagy 2013). A caveat is nevertheless necessary: The present discussion is more about how global generic legal models are prone, on the basis of invalid ethnocentric premises of Western legalism (McEvoy 2007), to disqualify the possibility that the traditional justice could serve as an effective forum for addressing past political violence. The detected contours of the societal organisation of the actual legal authorities may be seen as an unwritten constitutional arrangement in a broader sense. Since delivering justice is increasingly perceived to be a means of achieving legitimacy in conflicts (Ledwidge 2009, 6), this strategy could be relevant also in the cultural studies of insurgencies and responses to them. Enduring traditional justice mechanisms could play various roles in responding to Taliban’s tendencies to undermine the values of justice prioritized by various other actors. Afghanistan could also be seen as a humanitarian space in which normative orderings do not emerge merely on the side of humanitarian actors but also in deep dimension of the populations which conditions humanitarian governance attempts to improve (cf. Lohne and Sandvik 2017, 5).

Afghan law as foreign law could be also encountered within civil litigation in foreign legal cultures beyond the country (Gessner 1996; Foblets 2005; Ledvinka and Donovan 2021). Afghan legal authorities ranging from traditional justice to Taliban’s Sharia courts can also appear within the country-of-origin information in asylum trials (Good 2008; Ledvinka 2023). Similarly, they could be relevant also in context of cultural defence in criminal trials (Foblets and Dundes Renteln 2009) and in any other environment in which interlegal translation is deemed necessary (Donovan 2016). Recognizing that there are scholars with a more direct access to the present sociolegal aspects of Afghanistan, many of them mentioned here, this article should be taken as a supplementary compass which could help to situate more reflectively the understanding of Afghanistan’s legal pluralism at the ethnographic micro-level.

As a final preliminary note, this discussion portrays the expert knowledge production prior to August 15, 2021, or specifically before the Taliban returned as the central state power. It focuses on the traditional dispute resolution bodies (jirgas, shuras, and others) and omits, due to research scope limitations, the important question of the Taliban courts which are an obviously significant element of the country’s legal landscape (see e.g. Baczko 2021). Part one contextualizes this discussion by first showing the paradoxical dynamics of various recent perceptions of legal pluralism in Afghanistan as well as the negative reception of the role of social anthropology. Part two suggests the use of Pospisil’s anthropology of law rather than of social anthropology for downscaling the focus on the actual law and traditional justice in the particular terms of the country. There we also explore a genealogy of the legal ethnographies conducted in Afghanistan. Finally, the conclusion applies this review of ethnographies to relate the emergent levels at which sociolegal authorities operate to Pospisil’s multiplicity of legal levels.

Part one – transitional framings of Afghanistan’s legal landscape: from state-centrism to the traditional justice and back

What kind of legal pluralism is there in Afghanistan? The paradox of the variety of legal pluralisms in Afghanistan

The fact that Afghanistan’s legal landscape is characterised by legal pluralism has been broadly recognised in the expert knowledge production at least for over the last two decades: there are “some 53 ethnic [and religious] groups, all with their own … rules … which are culturally and ethnically valid for the adherents of a particular group as accepted … [and] used by local shuras and jirgas [the traditional dispute resolution bodies] to settle disputes” (Rastin-Tehrani and Yassari 2012, 3). Several sources of law in the country are often mentioned, such as the Afghan state’s legislation based officially on Islam and “Afghan legal traditions”³ and influenced also by codification attempts elsewhere and international treaties and conventions. Hanafi and Ja’fari jurisprudence, two different schools of Islamic legal interpretation (Rastin-Tehrani and Yassari 2012, 3; Elliesie 2010), as well as Taliban’s interpretation of Sharia influenced by Deobandi ideology (Braithwaite and Wardak 2013, 6) belong also to them. References to Islam, albeit variously understood, seem to be commonly used as a justification of the validity of laws and legal verdicts by all possible authorities in the country. These sources would be applied in pragmatic combinations and mixes (see, e.g. Wardak and Braithwaite 2013, 201; Rastin-Tehrani and Yassari 2012, 6). Thanks to global media coverage, the reader could also have noticed that the Afghan state judiciary has been recently overlayered by the Taliban’s Sharia courts in some portions of the country and particularly in Kabul after its return to central positions of authority after August 15 2021 (e.g. De Lauri 2021).

This mosaic picture of Afghanistan’s legal pluralism is perceived in a variety of ways. Rastin-Tehrani and Yassari (2012, 2) speak about this phenomenon, explaining that:

“Legal pluralism is the existence of several legal sources in a given country, each claiming priority of application on the same case. It is also possible that different legal regimes prevail … only on a specific territory or a specific group of people. Furthermore, legal traditions of various ethnic groups or religious communities may accept … different rules or standards … On the other hand, a state legal system may contradict a regional legal system as each one has its own source of legitimacy. Finally, a difference may exist between statutory law and the applied law” (ibid.).

The same authors indicate a remarkable paradox: On the one hand, they mention that the 2004 Constitution of Afghanistan provides a formal hierarchy of the sources of law according to which the state courts are “duty-bound to apply the statutory law in the first instance. In case there is no statutory provision found for a given case, the courts should refer to the … Hanafi jurisprudence. They may use customs and traditions at the last stage in a restricted form” (ibid., 6).⁴ On the other hand, they emphasize that “all reports on [the] Afghan legal system” describe that in reality statutory laws “existed on paper only” and the Hanafi jurisprudence is “scarcely followed,” summing up that “mainly customary law is applied” (ibid.).

Thus, the actual legal practice seems to contradict the official hierarchy of legal sources. But curiously enough this is not necessarily about the “difference … between statutory law and the applied law” in the conventional sense of this term. Rather, it could refer to the observation of an opposite hierarchy, one based, instead of on legal sources, on the decisions of authorities. In this alternative hierarchy, complex relationships between the law and society at various levels seems to prevail over top-down views:

Most important decisions … are made within … the extended family; problems are dealt with and disputes resolved on the spot … . When the extended family fails to resolve disputes …, or when disputes take place between members of more than one extended family, the involvement of the village (or inter-village)-based kinship group is sought. Village (or inter-village) jirgas operate as micro institutions of traditional non-state dispute resolution” (Wardak and Braithwaite 2013, 199).

Wardak and Braithwaite also openly admit that in reality “Taliban courts are preferred over state courts … [and] the justice of jirgas is preferred over both” (ibid., 200). This generalised observation surely indicates a shift from the problem of how Afghanistan governs conflicts between the sources of law to another vexing question of which legal arenas actually resolve them. This form of displacement no longer allows us to reduce the legal pluralism in Afghanistan merely to the mantra that “two or more legal systems coexist,” such as statutory law, Sharia and diverse legal customs (Swenson 2017, 115). As Swenson suggests, a more accurate conceptualization of the complex legal landscape requires a more close-fitting theoretical approach. Varieties of dualistic and hybrid models based on macro-divides such as formal–informal, state–non-state or official–traditional and linkages between them, as well as the very perception of Afghanistan as a “dualist legal culture” (Harper 2021), fulfil this goal only very roughly. The most significant detailed legal-ethnographic observations, some of which we present below, often elude them. Rather than classificatory moves anchored in the concepts of duality or hybridity (Albrecht and Moe 2015), the point of departure should be, in our view, an intense exploration of the interrelationships between the law and the overall societal structure of Afghanistan’s society on the respective micro-ethnographic levels.

Approaching and moving away from the traditional justice in Afghanistan

The lingering tendency to use global generic models of traditional justice as the Other of state legislation and the judiciary represents a background against which our inquiry is situated. Hence, it is important to mention that while state-centric models of law have been used by sociologists, social-anthropologists, and legal scholars in a variety of reflective ways, they have never been redesigned. The 2001-2021 transitional period’s production of site-specific ethnographically sensitive knowledge has mostly remained situated in grey or para-academic reports, briefs and accounts. It has usually suffered from the demand for “immediate policy-relevant knowledge” (Monsutti 2013: 270) and “quick wins and demonstrable metrics” (Swenson 2017, 129).

The use of global, generic models of traditional justice were usually not linked to the goal of an accurate conceptualisation. Inadequacies of applying such models to Afghanistan’s field data were often justified by being merely “an umbrella term referring to all such practices of solving disputes or offences outside of the state courts” (Wimpelmann 2013b, 407). In reality they nevertheless functioned rather as “an analytical representation of particular aspects of reality created as an apparatus or protocol for interventions in order to shape this reality” (Behrends, Park, and Rottenburg 2014, 1). In this way they are selective and not necessarily consistent with what the traditional justice “may mean in the Afghan context, and how they sit with Afghan values” (Winterbotham 2010, 2). The imposition of these models was itself justified by invocation of several “misperceptions” of the country’s historical and cultural context (Barfield 2012, 94) that depict the traditional justice through the perception that Afghans “lack something the civilized world possesses” (Mattei and Nader 2008, 110).

The use of distinctions such as law–culture, or state–non-state, formal–informal, or legal–social, is indeed inherently asymmetric. In particular, it implies Afghan traditional justice is opposite, parallel or alternative to regular justice, reducing it to, as Cheesman referring to Staten (1984) puts it, the rule of law’s “antagonistic exterior” or “constitutive outside” (Cheesman 2018, 173). For instance, McAuliffe presents the global model of traditional justice as a set of the following characteristics:

“Those tasked with responsibility for delivering justice are appointed from within a subnational community (usually quite small and based on geography or ethnicity) on the basis of lineage, status or (less frequently) election

They enjoy a degree of historical, charismatic and/or popular legitimacy

Crimes and disputes are viewed as relating to the entire community, as opposed to only the parties most immediately involved. There is a high degree of public participation

Decisions are arrived at after consultation, often with an emphasis on reconciliation, social harmony and reparation

The process is voluntary, even if enforcement of decisions requires social pressure from the community

Legal representation is not allowed and there are no formal rules of evidence

Participants may feel a stronger loyalty to the micro-community than to the state.” (McAuliffe 2013, 240).

As will be seen in part two of this article, wherein we establish a genealogy of Afghanistan’s legal ethnographies, many of these characteristics are indeed present in legal-ethnographic descriptions, but they are not intended to be defining attributes of Afghanistan’s traditional justice. In the nuanced, situated knowledge of the legal-ethnographic sort, the elements we tend to divide into qualitatively mutually exclusive concepts of the rule of law and the traditional justice are in reality both present in both domains, however differently configured. It may be also argued that the anthropological studies of the encounters of transitional justice with on-the-ground realities showed that re-establishing the rule of law is a complex problematique embedded in the (re)production of society at various levels and sites (Bleeker 2010, viii). In this perspective, we may recognise various dangers of inaccurate conceptual policy based on macro-divides such as that, without appropriate accommodation, applying global models of traditional justice to the particularities of Afghanistan can disempower society within transitional strategies, diminish the ways through which accountability could be achieved, and discriminate in favour of the State.

From that view, it is worth mentioning that the perception of traditional justice as the State’s Other has been a characteristic globally for transitional justice strategies in the 1990s (Faundes 2011, 18; see also Kyed 2011); this tendency has arisen in the context of Afghanistan during the 2001–2021 transitional period. The origin of traditional justice’s models on the international plane has left its trace in the form of a very narrow understanding of the state, one limited basically to central government. They have been further characterised by an inadequacy of applying external standards of state sovereignty and its limits within the country. In this vein, it was initially believed that with the guidance of the international community Afghanistan would undertake a transformation towards a stable rule of law primarily via the improvement of the Afghan legislation and judiciary (Miller 2004, 5–6), forms of governance which were internationally recognised as “official” or “formal.” Traditional justice was originally assumed to have “withered away during previous decades of conflict” (Murtazashvili 2022, 604), or to be “an obstacle” for the anticipated recovery by victims of past atrocities through improvement of the state legal system (Wardak 2004). As we will show latter, this position paradoxically culminated in anti-anthropological criticism for focusing at the very end of the transitional period primarily on the traditional justice to the detriment of the state.

During the transitional period, however, Afghanistan’s traditional dispute resolution bodies have been heavily studied, generating a variety of ethnographically sensitive, mostly para-academic reports describing their judicial capacity and responsiveness to human rights demands. Despite the traditional institutions having been persistently portrayed as something to be “managed” (Singh 2019, 21), observers have also noticed that their disqualification significantly narrowed the range of mechanisms which could communicate legal reforms in a “language that resonates among local populations and in a manner that is familiar” (Drumbl 2003). It has been also recognised that the over-reliance on top-down impositions of global legal models had led to a “judicialization” of local life that dangerously bolstered the inclination to threats and violence within legal relationships between families, clans and ethnic groups, at least in some areas (Adelkhah 2017).

As a result, the debate about transitional engagements with Afghanistan’s traditional justice has moved from the assumption of “an enclave of violence and lawlessness” (Monsutti 2013, 272) outside the Afghan state law to the notion of a legal landscape that is “ever-more crowded” (Swenson 2017, 121). The strategy for Afghanistan’s rule of law reconstruction had, for instance, acknowledged the traditional foras and non-state forms and procedures of accountability as possible “enablers for an integrated approach of transitional justice” which could be streamlined with subnational forms of accountability in accordance with the period transformation of the field of transitional justice (Akech 2021, 591).

Although the process of making the 2004 Constitution had been perceived as an attempt to fulfil the maximum democratic standard of legitimacy allowed by the conditions of the moment (Thier 2007), the Constitution itself relied on “an extremely centralized state apparatus” in contrast to the “reality in which individuals neither trust the centralized state, nor rely on it for many public goods” (Murtazashvili 2015, 10). It is particularly remarkable that the Constitution does not attribute any “official status” to traditional justice (Wimpelmann 2013a), even though it had continued to play a significant role. Despite this centralist tendency, the Afghan government continued to recognise the necessity to adjust or, as the Afghan Ministry of Justice declared, to “engage with the traditional system, to seek to eliminate its unacceptable elements and maximize its positive features” (Ministry of Justice 2005, 12). The Afghanistan Independent Human Rights Commission (hereafter AIHRC) was specifically mandated not later than in 2009 to “explore the traditional methods of confronting the past and promoting accountability” in order to “mould transitional strategy to the particularities of Afghanistan” (AIHRC undated, cited by Sajjad 2009, 430).

According to a number of sources, the bodies of traditional justice such as jirgas and shuras were estimated to continue to deal with around 80% of all disputes and crimes (Schmeidl 2011, 150; Wardak and Braithwaite 2013, 203, see also Ministry of Justice 2005, 12), and were not limited to rural areas (USAID 2005, 9). Anthropologist Karin Ask even points to “the subordination of national law to local law” (2005). Even though such judgements were, however, contested as “factoid” (Wimpelmann 2013b, 411),⁵ multiple on-the-ground reports continued to persuasively suggest that the state judiciary is often merely an optional and secondary apparatus after traditional dispute resolution or even Taliban courts (see, e.g. Baczko 2021).

Although the international and governmental focus on traditional justice became “a mainstream policy amongst larger donors” (Wimpelmann 2013a, 408), it had been repeatedly reconfigured by the state-centric models of legal evolution which saw the transition to the rule of law as necessitating an elimination or subordination of non-state/traditional legal foras (De Lauri 2013, 5 and 15). Indeed, five main transitional approaches in Afghanistan were primarily aimed at shifting the location of determinative legal authority to the State (Swenson 2017). Such projects ranged from editing out traditional justice entirely, to placing it under the authority of state actors via an appeal system, to the transformation of its practices to be consistent with the state and international law, and finally, to its integration into the state judiciary (ibid.).

The original attempt to include traditional justice into the constitutional design “characterized by ‘hybrid political order’” (Sakai 2020, 100), in which “traditional justice institutions would cooperate with and work alongside the state justice institutions” (Wimpelmann 2013b, 408, referring to Wardak, Saba, and Kazem 2007, 4), had been supported by both the Afghan government and the international community. But it was eventually rejected by the Supreme Court of Afghanistan and the Ministry of Justice as “a potential negation of the formal system’s universal jurisdiction” (ibid.). A complicated negotiating process resulted in a draft law⁶ which “essentially ended up criminalising the … system” of traditional justice (Wimpelmann 2013a, 404).

“The draft law stated that jirga members should have ‘complete knowledge of Afghan laws’ and be local residents, effectively disqualifying a large number, if not the majority, of current jirga participants. Moreover, the draft law declared that those members of jirgas and parties to disputes who did not observe its provisions should be prosecuted” (ibid., 404 footnote 37)

International engagement has nevertheless continued its focus on increasing awareness about the state legal system (Terpstra 2020, 314), while also to align customary norms and procedures with the commitment to uphold human rights (Kraemer 2020, 412). Murtazashvili recently sums up this development in this way: “Customary councils had the highest level of support of any public organization, except for religious leaders” and remained “a vibrant source of self-governance in Afghanistan” whose role has “never been as important as it is today” (Murtazashvili 2022, 603–604). Attempts to replace them by extending the jurisdiction of the fragile central state nationwide have proved “a costly failure” (ibid., 605). The Afghan government, on the other hand, has been increasingly seen in the midst of contradiction of being

“highly centralized even though it is de facto polycentric, which creates conflict between communities and government … recognizing that centralized … institutions may often come into conflict with de facto systems of polycentric governance” (Murtazashvili and Murtazashvili 2020, 125).

Some considerations upon the effectiveness of Afghanistan’s domestic accountability mechanism – especially in the field of international law and international criminal law – also moved strongly in this direction and remained focused primarily on the practice of the formal state judiciary while heavily ignoring the question whether or to what extent traditional justice has the ability to communicate international legal standards to the local population (for instance Sevastik 2020; Hakimi 2022, 376). This lack of clarity particularly appeared in the form of assumptions reviewed by Sevastik in the context of Afghanistan’s impunity issue (2019), for whom Islamic principles and Afghan legal traditions are seen as something that “complicates the already complex relationship between the rule of law, human rights and impunity” (2019),⁷ while any legal role which could be attached to traditional justice is refused in the following manner:

“In Afghanistan, the rule of law has never taken hold. Afghani citizens have never been given the opportunity to understand their rights and have never been empowered. Invoking the rule of law would signal the beginning of normative and political debate that has never taken place in Afghanistan. Such a debate would need to take into consideration Islamic principles and Afghan legal traditions” (ibid.).

The anti-anthropologics of law or the absence of the state in the legal anthropology of Afghanistan

A difficulty when reflecting upon Afghanistan’s internal allocation and distribution of legal authority within the society’s segmentary mosaic is not a peculiarity of international legal scholarship mentioned above, but rather Afghanistan’s social anthropology of the very late transitional period. Some social anthropologists voiced criticism of the expert knowledge’s conditions of production during 2001-2021, and of the older anthropologies of Afghanistan’s traditional justice which have been contested for overlooking the state. Curiously enough, the field of transitional justice has been globally struggling to implement traditional and local non-state legal arenas into the projects of the rule of law reconstruction as “a corrective to the flaws of ‘one-size-fits-all’ solutions” (Nagy 2013, 93). The traditional dispute resolution bodies have come to be seen as “a micro rule of law without a state” (Plunkett 2005, 212), and it has been recognised that the “traditional justice now ‘made’ through its interaction with international transitional justice as mediated by the state” could play an important role in such transitional and reconstructive processes (Nagy 2013, 93).

Contrary to this trend, however, anthropologist Wimpelmann asserts that the anthropologies of Afghanistan (which focus on the traditional justice) evince absences of the state legal institutions and that gap has been forged into “a new orthodoxy” that has structured the expert knowledge production for the international engagement with the traditional justice (2013a, 398). This orthodoxy, defined as going “beyond a ‘state-centric’ view and incorporated customary or non-state actors and processes in justice sector reform” (ibid.), also eventually led to an “exclusion of large amounts of people from ‘our’ standards of legality” (ibid., 400). This expert knowledge production “took the form of a functionalist anthropology” which is perceived by Wimpelmann “like earlier colonial ethnography” and, as she asserts, is itself responsible for vesting sovereignty “in a hierarchically structured configuration of localized authority and intervening external powers” (Wimpelmann 2013b, 418–419).

Anthropological expertise within the expert knowledge namely invented “an inherent preference for jirgas”, the traditional dispute resolution bodies, as “an immutable cultural preference” (ibid., 412, 415), while the reality of internal conflict, particularly the fact that state judiciary was systematically “targeted as government collaborators by insurgents” (ibid., 407) has been edited out. These and other erased realities contribute to the inaccessibility and malfunctioning of the formal law and state judiciary. In other words, focusing research on unstable and insecure areas, and framing knowledge about Afghanistan’s population “in anthropological terms such as culture, custom or community,” has been alleged to co-constitute an “ethnographic governmentality” of Afghanistan (Wimpelmann 2013a, 401–402).

Similarly, Adam Baczko asserted that the “imaginary anthropology of Afghanistan as a stateless country ruled by tribes” has been used to reinvent “tribal institutions” in the context of transmutations of counter-insurgency doctrine but “without understanding [their] principles” (2016, 1414, 1429). By “imaginary anthropology” the author means that social anthropology has created “the orientalist vision of a country” (Baczko 2016, 1423), and that the reinvention of Afghan tribes has also been an important factor in the circumvention of the Afghan state judiciary (Baczko 2021, 141–145). This criticism particularly emphasises that “[w]hat the anthropologists studying Pashtun tribes had overlooked, is that they were not so much an alternative source of authority as part of a continuing process in which the growing influence of a central state was slowly asserting its monopoly of violence” (ibid., 1423, also at 1425, footnote 2).

This fact, that the Afghan state “asserted itself in a continuous manner” from the end of the nineteenth century to the 1970s (ibid., 1423),⁸ is an intriguing reminder. Baczko’s study nevertheless works with a remarkably narrow concept of law as one confined to the state judiciary as manifested in this way:

“anthropologists … did not see the state and therefore deemed it absent. Yet the state was everywhere. The court of Asadabad dated from the end of the nineteenth century. It ruled continuously until the 1978 insurgency, basing its authority on Islamic Law, a religious legitimacy and an alternative to the traditional tribal one” (Baczko 2016, 1425).

The state in Kunar province of Afghanistan (on which Baczko’s study focuses) is basically represented by the state court of Asadabad, while the heterogenous mosaic of other legal authorities is virtually dissolved into “tribal politics” of “elders” in contrast to the “judicial model” of the Afghan state (Baczko 2016, 1414: see also Giustozzi and Baczko 2014, 200–201).

The pervasive prominence attributed by these authors to the central state could be read as a counterbalance to the studies that focused exclusively on the traditional justice, but there have never been absolutely pure accounts which edited out the presence of the state judiciary in researched areas or the causes of its devastation. Even reports which primarily focus on traditional justice regularly acknowledge that they are functioning alongside and/or in some form of cooperation with state courts or that the state had been demolished by the war and insurgency.⁹ Accordingly, De Lauri has been reflecting upon the reality that interactions of Afghanistan’s justice systems engender “normative syncretisms and forms of negotiated justice” (De Lauri 2015, 45). Attention to the content of the criticised legal-ethnographic or expert knowledge concerning the multiple authorities of law would surely benefit such considerations.

Part two: downscaling the focus on the law to micro-ethnographic observations

The previous section of this article described the tendencies within the literature to stake out asymmetrical sides preferring either state justice or traditional justice (the dual models), or to compromise between them by stressing their mutual linkages (the hybrid models).¹⁰ This phenomenon, as we suggest, may reflect a conceptual instability which is inherent to both kinds of models given that they are both based on applying macro divides (such as formal–informal) over the much more detailed graininess of Afghanistan’s internal societal distribution and allocation of legal authority. In other words, the dual and hybrid models approaching law in Afghanistan are simply not a close fit to the actual reality.

The question is, did the legal anthropologies of Afghanistan do it better? Certainly, social anthropologists whose long-standing embeddedness in various research organisations or development agencies, such as the U.S. Agency for International Development (USAID) (Hoben 1982, 358), sometimes fluctuate between the paradigms of their environment and academia (Coburn 2013). Beyond the practical concerns of their supervisors, such as peace-building or the reconstruction of the legal system, their expert knowledge production has been also influenced by the background in social anthropology and ethnographic methodology. This allows us to take some of this expert knowledge production at least provisionally as “a form of in-depth knowledge of other forms of [legal-cultural] existence” (Jebens 2011, 27) which does not necessarily miss “the chance of others and alterity” (Michaelsen and Johnson 2008, 3). Even though noting the para-academic nature of some of this knowledge, we approach it as ethnographic texts or legal ethnographies sui generis and situate them in the company of other kinds of legal-ethnographic researches.

The relationship of this production to social anthropology, and the anthropology of law in particular, is not explicit in terms of ontology, theory, or conceptual equipment (cf., e.g. Barfield 2008), which is our concern here. The reports’ avoidance of references to anthropology may be a reasonable research policy given that anthropology in general has “come to be seen more and more as a Western, rather than neutral, scientific project” (Leistle 2017, 6). The anthropology of law has nevertheless uniquely recognised not only the culture but also the law, the legal orders and authorities, of others (Ledvinka 2016, 2020,  2021). In its history, the field’s theory has overcome the tendency to impose ethnocentric legal models elsewhere and developed a signifying order for studying law derived from a comparative network of empirical examples of a variety of legal environments across the globe. Since the anthropology of law’s conceptual equipment is comparatively emancipated from the legal standards of Western societies, we assume that relating the expert knowledge to legal-anthropological theory is a reasonable step. It seems even more desirable to undertake this reconceptualization when, for some anthropologists of Afghanistan, the legal within the social remains somewhat marginal (Monsutti 2020, Marsden 2016), or they do not integrate the anthropological concept of law (see, e.g. Pospisil 1978b) into their approaches but rather uphold the state-centric presumption (Baczko 2021; Wimpelmann 2017). This part attempts to remind us that an anthropological concept of law, such as Pospisil’s comparative theory (1971, 2004) may help to frame more ethnographically adequate observations of multiple legal authorities on the ground without the necessity to dichotomously distinguish the state and the non-state or similarly as mentioned above.

Afghanistan’s legal ethnographies presented here, on the other hand, suggest downscaling “the macroscopic focus” on legislative efforts at a predetermined site such as the State, to “a microscopic and ethnographic focus” on the actual and concrete legal authorities, principles and practices on the ground (Rottenburg 2012, 483). Such downscaling requires a move from the variety of sources of law, such as Sharia, statutory law, and Afghan legal traditions applied by state judges (Amnesty International 2003, 34), to the multiplicity of legal systems that vary from tribe to tribe, village to village, case to case, and transcend together with traditional legal authorities’ subnational societal boundaries at various levels (see, e.g. Yousufzai and Gohar 2012). In this legal-ethnographic perspective even “Representations of customary law as homogenous … equally binding … unchanging …[should] be treated with extreme caution” (The Liaison Office 2005, 6) as it is not only “power and history [that] work through [the ethnographic texts] in ways their authors cannot fully control” (Clifford 1986, 7), but also a force of legal otherness may break through dualistic and hybrid models of law. This downscaling thus requires a shift – on the level of theory or ontology – from social anthropology which shares the state-centric legal orthodoxy with the international legal scholarship to the anthropological cross-cultural concept of law in particular. Precisely this perspective is required within the broader turn to recognition of Afghanistan as “settings of deep legal pluralism” which imply “decentralized engagement” rather than privileging state-centrism (Desai, Isser, and Woolcock 2012, 259; see also Coburn 2011).

Pospisil’s cross-cultural concept of law

As mentioned earlier, we suggest a shift from dual and hybrid models to the concept of legal levels. To re-orient the reader towards the ethnographic observations whose genealogy is established latter in this part, we adopt Leopold Pospisil’s analytical concept of law, which incorporates the idea of legal levels. This concept of law is not primarily oriented to the sources of law (such as state law, customary law, and Sharia), but initially focuses on who are the authorities functioning “in many ways comparable to that of the state … [who are] regarded as jural authorities by their followers” (Pospisil 1967, 7–8). This concept of law itself provides a set of criteria (“attributes of law”) which are either detectable empirically in the field or analytically in already collected material. Law could therefore be identified anywhere these attributes as empirical variables converge, “regardless of whether the law operates on the level of the state, society as a whole, or on subsociety or substate levels” (Ledvinka and Donovan 2021, 1113). These four attributes are defined as the authority’s decision, intention to apply principles universally (at least within the social group to which the legal authority belongs), obligatio as an authority’s pronouncement about the relationships between parties and how they were breached, and sanction as the vision on how to repair the breach (in detail see, e.g. Pospisil 1978b, 30–51).

The present discussion builds upon the premise that Afghanistan’s traditional dispute resolution bodies (jirgas, shuras, and others) do correspond to Pospisil’s anthropological definition of legal authority as “an individual (a chief, a headman, a judge) or a group of individuals (an assembly of elders, a council of chiefs, a tribunal of judges)” whose verdicts or even informal opinions are respected by the population and/or the parties to a dispute (1978a, 105).¹¹ In Pospisil’s view, consequently, the (jural) law “exists in concrete legal decisions … passed and enforced by an authority … upon … parties who stand under the authority’s control” (ibid., 108). In terms of Afghanistan, legal systems which are more closely related to Pospisil’s concept may be seen in the case law systems such as narkh or tselay rather than traditionally inflected terms such as pashtunwali or customary law. Those latter terms do otherwise correspond with the “explicit abstract rules … codified or remembered” (ibid., 15), another form of law in Pospisil’s perspective. Nevertheless, it should be clear, their vitality and actual application are dependent upon a concrete legal authority in question.¹² Merely under the condition that an authority applies them in legal decisions, they may be situated within the entire societal structure and specifically related to interrelationships between the Afghanistan’s society’s pertinent social groups (see, e.g. Pospisil 1978a, 98).

As Pospisil’s theory of legal levels serves as a navigation tool in the following genealogy of legal ethnographies, several further aspects of his concept of law should be mentioned. First, unlike the assumption that the legal system is a set of laws which could be located at the level of the state, Pospisil suggests that any concrete legal system, being “the totality of the principles incorporated in the legal decisions of an authority of a society’s subgroup[,] constitutes that subgroup’s legal system,” and may be detected by this concept as established at a corresponding societal level at which the authority operates (i.e. the “legal level”) (Pospisil 1967, 7–8). Or it may be said in another way: since the legal authorities are related to the society’s mosaic of pertinent groups and subgroups, “the total of the legal systems of subgroups of the same type and inclusiveness (for example, family, lineage, community, political confederacy) [is called the] legal level … [while] … the law “differs among groups … within the same legal level … [as well as] … between different legal levels” (ibid., 9).

Particularly relevant to instable societies, we find in Pospisil the suggestion that instead of law being automatically the prerogative of the state (in case of Afghanistan either state courts or Taliban’s sharia courts), “the center of legal power in a given society [should be identified] with that legal level whose authorities pass decisions that prevail in situations of conflict with similar judgments of authorities of groups from other legal levels” (1967, 16). It is clear that such a power center is not easily detectable in situations of societal instability such as in Afghanistan, but rather laboriously can be located in an ethnographic manner given that it is “not a static phenomenon. The relative amount of power at the various levels at a society … may diminish or increase with the result that the center [may] shift its position to another level” (Pospisil 1967, 18).

What Afghanistan’s legal ethnographies are capable of adding to this already quite complex theory of Pospisil’s¹³ is the “continuum along which an authority can be situated, ranging from a high degree of social integration into the social group or subgroup affected by the dispute to significant remoteness from the social (sub)group(s) in question” (Ledvinka and Donovan 2021, 1134). Somewhere along this continuum Afghanistan’s traditional dispute resolution bodies may be located with regard to how they are usually temporarily composed of legal authorities of different subgroups in order to resolve a crime or a dispute between members of these same differing subgroups existing at various levels. We have suggested above this phenomenon should be termed “legal sodalities” or “intergroup meeting-like associations of legal purpose” (ibid.).

A selective genealogy of legal ethnographies of Afghanistan

Several ethnographic observations of the levels at which legal authorities in Afghanistan operate may be related to Pospisil’s concept of legal levels and the dynamics of the centre of legal power (e.g. Pospisil 1967, 1971, 97–126; 1978a; 1978b, 52–60; 2004, 487–537). To more deeply substantiate this suggestion, we now undertake a genealogy of legal ethnographies conducted in Afghanistan. The sketched genealogy is neither the only one possible nor exhaustive, but rather a selective effort to show that what constitutes the difference/alterity of the variety of traditional justice’s foras in Afghanistan (usually signified by the single term, jirga, and sometimes shura [Ghani 1983]) elude the conceptual logic of legal duality (or hybridity). It should be understood rather in terms of a gradation of multiple and diverse levels. Tracing the evolution of an ethnographic understanding of Afghan traditional justice from the early nineteenth century, through the state-building ethnographies of the twentieth century, and culminating with the ethnographically sensitive reports of the transitional period in the twenty first century, we find that legal levels seem to have acquired an entirely new role in the understanding of the Afghan legal landscape.

It should be noted that onlookers are routinely bombarded by two kinds of images of traditional justice and the dispute resolution bodies of jirgas, shuras, and others. First, jirgas are seen as the legal authority of a community which is fundamentally tribal and whose jurisdiction is locally delimited in contrast to the territory of a nation-state. It is this embodiment of Afghan traditional justice that is the subject of various legal ethnographies. The second image involves the loya jirga, Afghanistan’s national assembly, which has been part of the central government system. As such the jirga is both strongly associated with the construction of state sovereignty (Giustozzi and Baczko 2014; Baczko 2016), as well as being the state’s “rival” in remote, rural areas, two readings which are sometimes posited against each other (Monsutti 2013, 271, 273). We may nevertheless encounter the term jirga also for the diplomatic summits at various levels (Semple 2009, 99). All these tropes were resurrected to provide momentum to transitional justice debates after 2001, but as will be demonstrated, they had been successively forsaken in the development of Afghanistan’s legal ethnographies.

Legal ethnographies within colonial encounters

In nineteenth century, Afghanistan had become the field of major interest in the Great Game between the British and Russian Empire. In order to prevail, the British policy administrators attempted to figure out an efficient political as well as bureaucratic approach towards the country based on “character traits of Afghan ‘tribes’” and “their associated stereotypes” (Manchanda 2020, 121). As pointed out by Manchanda, referring to Titus (1998, 663), there was a delicate “assumption” that the specific features of Afghan people such as their alleged “wild”, “semi-savagery” and “ungovernable” nature are “caused by their institutions and could be alleviated by humanitarian reforms” (2020, 127). A detailed ethnographic knowledge of these institutions was thus a desirable navigation tool and Afghan traditional justice soon become one of the period’s key ethnographic leitmotifs, one usually surrounded by various colonial prejudices.

This is the case of the first ethnographically sensitive description of Afghanistan, An Account of the Kingdom of Caubul, and its Dependencies (1815) by Monstuart Elphinstone (1779–1859). Elphinstone, credited to be “the first known scholar of Afghanistan,” or a “founding father of Afghan studies”(Manchanda 2018, 169), was the first British envoy to the court of Kabul whose task was to establish an alliance with the period’s Afghan ruler. The mission, albeit a political failure, was remarkably succesful in that Elphinstone “and his colleagues in the East India Company, as the first major group to study Afghanistan” (Rahimi 2017, 98), “generated a wealth of material that he turned into a detailed report” (Manchanda 2020, 114). This report, An Account, well represents early ethnographies instigated by British colonial encounters at the Indian-Afghan frontier. It is widely perceived as an “enormously influential … voluminous exposé of all that [Elphinstone] encountered and observed in the country” (Manchanda 2018, 169, 173). The richness and extent of the data has led Dupreé, a leading twentieth century scholar on Afghanistan, to argue that “Most writing on Afghan people and culture is simply a footnote to Elphinstone … Writers on Afghanistan have either copied Elphinstone or copied those who have copied Elphinstone” (1980, 55, note 1). The work has been often mentioned also in the transitional context of the twenty first century but without detailed references to its understanding of the inner legal and constitutional composition of the country. “[T]he study of the government and manners of the people” was Elphinstone’s agenda (Rahimi 2017, 99), and we will focus on this aspect. Contrary to these enthusiastic reviews we will demonstrate that the trajectory of subsequent legal ethnographies may be clearly positioned in some important ways against Elphinstone’s original views on traditional justice.

Setting aside methodological limitations¹⁴ seen in retrospect, Elphinstone remained unrivalled in his time for the extent he speaks about the law of the country and the organization of traditional justice which he saw as a heterogenous, contingent, and complex form of judicial and political governance. It operated in the milieu of “anarchy and disorder” and otherwise “lawless life” of the south-eastern Afghan tribes, sometimes being subjected to the higher authority of the khan or replaced by royal officers or assemblies of mullahs (Elphinstone 1815, 220). In this way the term ‘jirga’ (or ‘jeerga’ in his original spelling) as an embodiment of Afghanistan’s traditional justice was introduced to Western audiences.

In contradiction to his general acceptance of the Orientalist trope of tribal environment as “a mixture of anarchy and arbitrary power” and unlike today’s perceptions of Afghanistan as “a rule-of-law vacuum” or “lawless vacuum”, Elphinstone specifically recognized sharia as the general law of Afghans and pashtunwali as “the only [code] applied to their internal administration of criminal justice [emphasis in original]” (ibid., 165). His insightful awareness of the country’s legal segmentation is manifested, for example, by his remarks on the municipal law of Kandahar in which peculiar tribal institutions are “superseded” (ibid., 213, 426). His perception was nevertheless complemented by a strong moral stigmatization of the institution of traditional justice as a “defective” and “rude system of customary law, founded on principles such as one would suppose to have prevailed before the institution of civil government” whose “remote effects” like dissimulation and cruelty are “probably not discovered by the rude legislators of Afghaunistaun” (ibid., 165–166).

This prevailing negative view, however, did not prevent Elphinstone from arriving at an anthropological-like conclusion that “[t]he law relies on the exertion of the injured person, his relations, and his tribe, for obtaining him justice” while “the government protects [only] as far as its power extends” (ibid., 228–229). Elphinstone’s interpretation of jirgas was indeed vastly different from that which expert knowledge communicates today. He understood Afghan traditional justice as “republican” institutions and tribal at the same time. He specifically absolutized the notion of tribe, claiming that “each tribe has a government of its own, and constitutes a complete commonwealth within itself”. The private law elements were nevertheless reduced to “the same principles” which were observed in dealing with crimes in his descriptions, accentuating particularly the revenge and blood money as a chief form of sanction [Elphinstone 1815, 158, 167 (at footnote) and 174 (at footnote)]. This configuration of legal-orientalist absences of distinct private law principles, on the one hand, and the prevalence of the “rude” traditional criminal justice administered by traditional justice is startling today considering that the commonly used models now pre-eminently attribute restorativity to traditional justice (McAuliffe 2013, 240).

Elphinstone’s report also shrouded traditional justice in a veil of collectivity and tribalism, and is today perceived as providing a template for “images and at times celebrations of autonomous and sovereign tribes” (Haroon 2007, 14). By 1871 a presage of a significant shift in this perception was marked by Elphinstone’s intellectual heir Georg Campbell (1824–1892) in his renowned speech, Afghan Frontier (1879). Campbell, “the lieutenant-governor of Bengal and a leading figure in the energetic ‘Punjab School’ of British Indian administrators … never set foot in Afghanistan and spoke not a word of Dari or Pashto” (Manchanda 2020, 121–122). He rather selectively mirrored period ethnographic sources (ibid.). In this way he reflected Afghans as “a people among whom every man would be a law unto himself” but when referring to “the ancient law of the Afghan race,” he also significantly reflected that “we [the British], that so much pride ourselves, on our popular institutions, appear to be the last to recognise anything of the kind among other people” (Campbell 1879, 12, 70).

The ethnographic observation that jirgas are not merely related to the “anarchical life” of villages or tribes but are also fundamental for the constitution of various levels of legal authority within Afghan society came soon after in An Inquiry into the Ethnography of Afghanistan (1891). Its author, Campbell’s contemporary Henry Walter Bellew (1834–1892) was a “leading expert on Afghanistan, with his work consistently being extolled as some of the finest” (Manchanda 2020, 176). For thirty years he worked for the British political mission to Afghanistan. During this time he not only “served the government as interpreter and political agent on several occasions, finally as chief political officer in Kabul,” but was also a civil surgeon in Peshawar, studied the languages of the Afghan peoples, and published on the grammar and vocabulary of the Pashto language (MacKenzie 1989). He is also credited as the author of the “first real ethnography of the country” (Manchanda 2018, 176). Similarly to Campbell, Bellew initially viewed the law in Afghanistan as, “weak at the capital, became a dead letter in the provinces, where everybody interpreted it for himself, and wielded it at the bent of his will” (Bellew 1879, 25, 213)^. But in An Inquiry he notably recognized distinct levels of traditional justice, claiming that “The jirgah, or ‘council’ of these three tribes” is used to settle disputes that cannot be settled “by their own councils” according to “a particular code, called ‘nirakh’” (Bellew 1891, 120). The term nirakh seems to mean a case law established among the aforesaid tribes whose more recent spelling could be narkh. However, the important thing he showed is that tribes are neither a static nor a definitive societal framework for legal authorities.

The significance of this observation would have to wait to be accepted as a cornerstone of the understanding of traditional justice for more than a century. Instead of repeating Elphinstone’s view, this emerging perspective was a strong indication that the legal anthropology of Afghanistan would become a dynamic field which dramatically developed beyond being merely “footnotes” to Elphinstone.

State-building legal ethnographies of the twentieth century

Unlike the ethnographies of colonial encounters, those of the twentieth century are usually strongly associated with visions of the self-asserting Afghan state. These ethnographies are characterised by the impulse to categorise the knowledge of traditional justice as cultural materials which are stripped of legal problematique. Accordingly, the absences of private law elements of customary law was replaced by the more extreme presumed total absence of law and legal authority within Afghan culture, these being newly reserved exclusively to the State.

According to Rzehak “the first written accounts” of Afghan origins appeared in the 1950s and were dominated by the focus on pashtunwali and jirgas as emblematic for the identity of the nation (Rzehak 2011, 4, for an overview of these works, see at notes 9–12). These reports were produced by members of the Afghan “Wesh Zalmian movement and other groups of the intellectual enlightenment” who tended, as indicated by Rzehak, to transform the law-ways from a “folkloric point of view” into “national qualities,” “moral” and “cultural principles,” or “habits” and “customs” (ibid., 1 and 4). Consequently, clusters of principles and practices which could be identified as legal within the anthropology of law, were characterised as a non-legal “set of values” and “rules of behaviour” or – following the example of Mediterranean anthropology – as the “code of honour” or “shame” primarily associated with tribal or rural margins and pastoral nomadism (ibid., 1, 5, note 15). This view was partially modified by later ethnographic works but the legal significance of rules and practices remained largely unrecognized (Anderson 1975; Barfield 1981; Ferdinand 2006; Glatzer 1977; Schuyler 1974; Tapper 1991), or at the most blended into hybrid mixtures of, for instance, “the warrior ethos” and “the customary law” (Sierakowska-Dyndo 2013), or “the code of honour” and “legal meaning” (Steul 1981).

In this vein the concept of pashtunwali had been described until quite recently in the following way while its legal dimension was often omitted or relativized:

“ethnographically understood, pashtunwali is a complex system of cultural values and orientations (including instincts and reflexes) that articulates the charter for Pashtun identity and social behaviour. This charter consists of three interconnected features. Pashtu laral (having Pahstu) through patrilineal descent; Pashtu kawal (doing Pashtu) through behaviour such as being generous, sharing food and space (melmastia which literally means hosting guests), giving refuge and protection in political, social, and physical spaces under one’s control (nanawatay), taking revenge (badal, balanced reciprocity), maintaining honour (nang), avoiding shame (sharm); and Pashtu wayal (competence in speaking Pashtu as one’s mother or first language)”. (Hanifi 2011)

The more legal-ethnographic approach nevertheless acknowledges that “Pashtunwali also includes a system of customary legal norms (narkh) which is closely related to the code of honour” (Rzehak 2011, 2). Perhaps the most significant corrective to this folkloric ambience was marshalled by Afghan Ibrahim Atayee who held numerous “discussions with elders of authority” in the areas of Helmand, Kandahar, Nangarhar, and Paktia, and generated a wealth of material that he turned into the detailed A Dictionary of the Terminology of Pashtun’s Tribal Customary Law and Usages (1979). This text, which is a remarkable work of the period, has been unfortunately not expanded, to our knowledge, by further researches. Atayee’s extensive and detailed research should be considered an in-depth legal and linguistic anthropology of the concepts that belong to the “tribal customary judiciary”, as Atayee put it (ibid., 3–4). The work surprisingly shows that such concepts as “honour” and “shame” – rather than being non-legal means of social control – are integral to traditional legal systems. Large entries show that traditional legal terminology contains both criminal and civil law elements and far from being merely a local or tribal alternative to the state judiciary, traditional justice is referred to not as isolated local dispute resolution bodies but rather as a complex “jirga system” or “council system” (ibid.).

The exceptionality of Atayee’s understanding of traditional justice as a “judicial system” is underscored by the contrary position of Noorzai, at that time the director of the Afghan Academy of Sciences, who authored the foreword to A Dictionary. Noorzai speaks primarily about “the old tribal social traditions [that] are doomed by history to leave their place,” and misclassifies Atayee’s contemporary research on living legal terminology as instead a study of “ancient culture,” “historical materials,” and “cultural materials of its society yesterday” which will soon become “legendary” (Noorzai 1979). His approach to Atayee’s work is based on a simple strategy: historical categorisation of traditional justice and its research disconnects it from the present and discursively neutralizes the possible rivalry of traditional justice with the Afghan state judiciary in the struggle over legal authority.

A paradox is that while Atayee’s study of traditional justice was probably motivated by a nostalgic witnessing of what he thought was the vanishing phenomenon, its future was more correctly intuited by the translator of Atayee’s work into English, Nader, who recalled the popular perception of the “jirga system” as an embodiment of “the total good” of Afghan people (footnote at Noorzai 1979, iv). The multi-layered plurality of perceptions of the traditional justice within this single text seems to foreshadow the meanders of the country’s further legal developments.

Legal ethnographies in times of transitional justice

 

Since we were unable to identify any relevant legal ethnography from the following period (with the exception of Carter and Connor [1989] mentioned below), we must leave the periods of the Afghan civil war, the mujahedin regime of 1992–1996, and the subsequent Taliban regime out of our review, and enter directly into the penultimate period of the history of Afghanistan.

The transitional period since 2001 instigated an enormous number of para-academic, ethnographically sensitive reports. Significant for this knowledge production is, as Wimpelmann points out, a division of labour between “Local Afghans … [with] access to communities … [who] operate undetected in unstable areas, and … communicate in local languages” and “trained experts, mostly foreign [who] subsequently … validated, refined, and put [data] into useful forms” (Wimpelmann 2013b, 414). The expert knowledge structured in this way fuels developmental projects such as “The Rule of Law Stabilization Program – Informal Justice Sector Component (RLS-I) which took place in 2012–2014 and aimed at a restoration of traditional justice with the help of private contractors (USAID 2019; see also Bartz, Momand, and Swenson.2018; Akers 2016). The function of the expert knowledge on traditional justice has been, among other things, an assurance of certainty that external agencies “are talking with the correct local Afghan leaders when in fact, they may be unwittingly drawn into one side of an on-going dispute” (USIP 2009).

The most important features of this generation of scholarship on Afghanistan’s legal pluralism had already been anticipated in Lynn Carter and Kerry Connor’s A Preliminary Investigation of Contemporary Afghan Councils (1989). This report sums up the contact experience with traditional councils of several European and American NGOs. Presciently, its practical standpoint revealed the numerous ways and forms of societal groupings and showed that, to be properly understood, jirgas and shuras as the embodiment of traditional justice needed to be situated in a continuum of social sodalities ranging from extremely informal meetings to more formal councils, from occasional bodies responding to emergent disputes to more regular duties, and from ad hoc to permanent jirga members with a huge local and regional variation (ibid., 3, 21, 36–37).

In contrast to depictions of disputes between villages, tribes or ethnic groups as “collective conflicts” which are resolved by a “collective-decision-making and adjudicative institutions” (Murtazashvili and Murtazashvili 2021, 15), as well as the trope of the “omnipresent risk of escalation of the conflict from a private to a collective one” (Baczko 2016, 1417–1418, referring particularly to Ghani 1984, 98–99), this report sees traditional dispute resolution bodies rather as formal, flexible and variable authorities which resolve disputes between individuals from different collectives that had arisen due to “internal migration” within Afghanistan (Carter and Connor 1989), which resemble the resolution of disputes between parties from different states (as in the private international law’s domain). Such translocal or inter-community conflicts require meetings between legal authorities from affected places and communities, and established jirgas at a new “level” whose decision would be implemented in both or all affected sites (ibid., 10, 25). In this way, traditional legal authorities are also recognized as travelling. State-building strategies of the Afghan central government even employed the fact, as the report mentions, that traditional legal authorities could be invited from elsewhere to settle disputes impartially. While it discouraged non-Pashtuns from making legal verdicts, it encouraged Pashtun jirgas to assume this role throughout the state territory (ibid., 9, 15).

In these observations the term “tribal law” newly included not only “ancient” but also very new principles as “several sub-groupings” created their own “traditional methods” for dealing with conflict (ibid., 11). Thus, the very term “tribal” became provincialized as it referred to just one level among many others at which traditional legal authorities might be established to address legal matters ranging from conflicts “between individuals, families, groups of families, or the whole tribes” (ibid., 10–11, 37). The extent of their flexibility even led the NGOs into a “serious dilemma” concerning the restoring of national unity, since by working at lower levels they may risk reenforcing societal fragmentation, while they simultaneously desired to encourage larger groupings potentially by working at higher levels (ibid., 5).

A Preliminary Investigation implicitly assumes anthropological legal pluralism, a recognition which is peculiar among even the most robust legal-ethnographic reports of the transitional period (e.g. The ILF Report 2004; The USAID Report 2005; TLO Report 2009; Yousufzai and Gohar’s Report 2012, all discussed below). The change these reports represent consists in the replacement of “tribal” or “non-state law” with the term “level” which is applied to explain the dynamics of the structure and allocation of authority in the segmentary societal environment (see below).

This view is particularly well developed also in The Customary Laws of Afghanistan, the ILF Report by Karim Khuraam and his Afghan colleagues based upon conversations with members of traditional jirgas in the Pashtun areas of Southern and Eastern Afghanistan (2004). This Report was meant to demonstrate by empirical data the thesis that “the customary laws of a country [are] indispensable to successful rebuilding of a criminal justice system” (ibid., 64). The understanding of traditional justice was deepened by this research in several ways. First, it showed that the term jirga may in fact refer to quite different traditional legal authorities located in various social segments, such as ‘jirga’ in southern Afghanistan, ‘maraka’ or ‘majiles qawmi’ or ‘jirga’ in the central region of Hazarajat, and ‘awri’, ‘awra’, ‘awrjast’ (‘uloo’ or ‘landhyar’) authorities in Nuristan, and so on (ibid., 7, 21, 36, 51–53). Second, it described how traditional legal authorities can be established at higher translocal or trans-societal levels, functioning as inter-family, inter-village, or inter-tribal, as well as “inter-ethnic” dispute resolution bodies which are “made up of representatives of both ethnicities” such as jirgas composed of “Hazara and Pashtun nomads, and their both schools of Sharia, Ismailia and Hanafy” (ibid., 32, 49, 59). These descriptions of jirga are startling considering, for instance, McAuliffe’s model of traditional justice as fundamentally local and according to which “delivering justice” is realised “from within a subnational community (usually quite small and based on geography or ethnicity)” (2013, 240). Third, the descriptions of jirga procedures such as nanawate, a reconciliation form of trial, are framed as a strictly “formal process of apology” for a murder assisted by the jirga members themselves (ibid., 21, 28).

The ILF Report makes clear that reduction of the layered multiplicity of legal systems within Afghanistan to mere non-state or informal law is untenable. The report claims, for instance, in Afghanistan’s province of Nuristan “every village has a council” and “their decisions are still considered to be law” (ILF 2004, 35–36). The status of women is protected by the awra, a kind of local jural council, which is also the key guarantor of women’s rights (ibid., 15–16). The awra legal system seems to be a guarantee that girls are not given to marriage as a fine or penalty and that adult women enjoy legally independent status. We mention this in order to show the nuance and heterogeneity of Afghanistan’s traditional justice. Most of the reports concerning women’s rights nevertheless mention the oppressive and patriarchal nature of traditional justice. The practices violating the dignity of women and girls, however, are not “entirely gone” if even in Nuristan, even they are illegal under the traditional law of certain awras (ibid., 38).

As mentioned by Wardak and Braithwaite (2013, 202): “Traditionally, women were not allowed to participate in jirga/shura decision making. Jirgas sometimes ordered baad (the use of women as a means of dispute resolution) or badal (the exchange of daughters between two families for marriage).” Nevertheless, there is more recent scholarship which points to “the evidence that both badal and baad as jirga eoutcomes had become increasingly rare,” although the participation of women judges in both state courts and traditional dispute resolution bodies are commensurably minute (Wardak and Braithwaite 2013, 204, referring to Smith and Lamely 2009). In this scholarship, some of the traditional dispute resolution bodies are perceived as being “at the forefront of contributing to lower levels of domestic violence and have transformed attitudes to women’s rights at the forefront of women’s rights vernacularizing [them] into the discourse of traditional justice” (Wardak and Braithwaite 2013, 204, referring to Waldman 2008, 18, see, e.g. also Suleman and Copnall 2006, 43).

Significant legal-ethnographic observations may also be found in Field Study of Informal and Customary Justice (USAID 2005), whose data were collected in late 2004 and early 2005 during focus group discussions and interviews conducted in Nangarhar, Logar, Kabul, Herat, and Jawzjan. This work describes “a wide variety of clusters of norms and practices, often uncodified and orally transmitted, usually combined together in varying mixes” (ibid., 4) and shows that many traditional jural councils are composed according to the nature of the disputes – including “murder disputes” – and serve various legal functions from “judiciary” to “authenticating witnesses to a contract” (ibid., 4–7). They are “not limited” to nomadic populations and rural tribal groups but are also equally applicable to urban social life (ibid., 9).

The USAID Report documents the degree to which the system of traditional justice has been weakened by the effects of war, population displacement, and loss of local resources to drought, as well as by the return of the displaced and refugees. It also shows, however, that despite such detriments, the majority of the urban and rural population remains subject to various jirgas and relies on them heavily in intra- as well as inter-group matters. Even those who attempt to approach the state courts are often referred back to the jirgas (ibid., 13). The particularly “high degree of mobility of the Jirga” lends it another advantage over the comparatively staid state courts, as the report illustrates (ibid., 29). The flexible mobility of traditional justice’s bodies is also associated with the dynamics of the “clusters of norms and practices” which can evolve “what was once customary but is not any longer” (ibid., 53).

Another ethnographically sensitive report from the later transitional period is Linkages between State and Non-State Justice Systems (TLO 2009). This two-sited research by the Liaison Office (formerly the Tribal Liasson Office) was based on interviews, focus-groups and analysis of numerous legal cases in a rural village in Paktia province and urban Jalalabad. The fieldwork of the TLO has been impressively replicated in numerous sites in South-Eastern Afghanistan and compiled in further TLO reports. This first report, though, even more than those previously described, shows that jirgas are used to solve disputes “among tribes, subtribes, clans, families, individuals, but also the government and the tribes” (ibid., 2). In this way it remarkably provincializes the state or central government as just one among many other “tribes” which must yield to the same logic of traditional justice’s societal organization as did other jirgas (see also Karokhail and Schmeidl 2006; TLO 2009a, 2009b). Despite belonging to the highest political levels in the country, the state, as implicated in this report, does not occupy the center of legal power but has instead often appeared at lower jurisdictional levels and paired with traditional legal authorities in order to achieve legitimacy for its legal decisions (and the enforcement of them in the communities).

The report also describes solutions of traditional dispute resolution bodies for “disputes between members of different communities” and points to the involvement of legal authorities “from third tribes” who help resolve intra- or inter- tribal legal matters impartially (TLO 2009, 15–17). Besides the translocal composition of jirgas at various levels between two or more communities (the state may be one of them), it points also to the problematique of applying the legal principles from verdicts that must be implemented across communities or areas whose legal systems (for instance the case law systems of narkh or tselay) differ. The solution to this translocal challenge involves “inter-tribal agreements” on applicable laws including inter-tribe-government agreements or rather “the agreements between tribes and government” (ibid., 16). Such kinds of agreements are “widespread” at various trans-societal levels and evince a broad range of forms (oral, written), covered numerous topics, and forms of implementation at subnational levels (ibid., 21). They follow past agreements but usually introduce new rules for dealing with specific kinds of disputes (ibid., 15). Such subnational translocal “treaties” also regulate the intra-state overlapping jurisdictions and mutual recognition of verdicts between the state and tribal institutions in areas that the state is unable to control (ibid., 21). The existence of these alliances further relativizes “ancient,” “tribal,” or “local” referential frameworks for descriptions of traditional justice. The “inter-tribal” agreements are moreover distinguished from “intra-tribal” ones which overbridge the relationships between various subgroups by jirga-negotiated common legal principles shared by them (ibid., 17).

This practice of both intra- and inter-tribal legal sodalities (the traditional councils) and the clusters of principles, practices and ideals applied by them, suggests that most of the Afghan legal landscape is constructed upon a singular logic of societal association, groupings and segmentation. This translocal or trans-societal organization of traditional justice, as well as the flexible composition of the set of applicable legal principles and practices, is complemented, as several reports mention (e.g. ILF 2004), by severe sanctions. Nonetheless, punitive sanctions are typically associated with the enforcement of verdicts and are applied to people who are not willing to respect them. Traditional solutions of legal matters, on the other hand, assert rather pragmatic and reconciliatory resolutions even in cases of murders. Since “the pressure mechanism to achieve agreement” is directed at both murderer and the victim or their respective social units, leaving them with “little choice to reject [or] accept their decisions” (TLO 2009, 23, 26), it is somewhat difficult, in the light of TLO report’s findings, to see it as a Western kind of restorative diversion from harsh criminal sanctions.

The final legal ethnography sui generis we explore is Yousufzai and Gohar’s Towards Understanding Pukhtoon Jirga (2012). This ethnographically sensitive report presents research on the various facets, functions, and dynamics of traditional justice at the Pashtun belt on both sides of the border between Afghanistan and Pakistan. It should be noted that the authors focus on the traditional justice “as it is understood” (Yousufzai and Gohar 2012, 14) without reflecting upon the heterogeneity of such understandings at various localities and without confronting these understandings to its actual functioning. Even though possibilities that jirgas may become a place of violence or that they could be “hijacked by influential … monopolizers with the intention of accruing undue benefits and exploiting the weak” are mentioned (ibid., 67), this ethnography seems to be more about somewhat generalised living native ideology of the traditional justice.

It nevertheless still presents very rich and detailed data and several unique remarks are made especially about the interdependence between the traditional justice and the law of hospitality (melmastia) as its overall context within which traditional dispute resolution bodies operate (ibid., 44).¹⁵ Since either the entire traditional jirgas or their individual members travel as they are often invited to resolve conflicts, they are protected under the code of hospitality which enables them to resolve cases between parties residing in close proximity as well as “distant apart” (ibid., 62). This latter case “when the parties are distant apart” is of our particular interest. Even though the authors claim that such a traditional trial is not about adjudication (or “arbitration,” in their own words) (ibid.), this view is untenable in the light of further detailed descriptions.

The authors particularly show that a dispute between parties from differing localities (such as two villages) is being responded by a traditional dispute resolution body which is composed of “elders of the two villages [who] in such a case … form a collective Jirga” (ibid., 62–63). This possibility seems to be limited “when the parties [which] reside in different areas … do not share the same code of Pukhtoonwali” (ibid.). In such a case the jirga works more “as a delegate or council of the complainant party” and such a visiting is referred to as playing “a diplomatic role” (ibid.).

The authors also mention several ways of achieving the respect of the parties to a dispute for the legal decision issued by the traditional dispute resolution body as well as ways of its implementation within the respective communities/localities to which the parties to a dispute belong:

“Since implementation of a decision is the most important element of the process of dispute resolution, Jirga decisions have to be practicable or agreeable to both the parties. The Jirga would raise Arbaki, its security force, only in exceptional cases. Therefore all decisions of the Jirga must have built-in mechanisms to ensure implementation” (ibid., 64).

Confining the traditional justice to a restorative mechanism could lead the reader to the error that if the persuasiveness of the traditional jirga fails, the legal order is necessarily breaking down. Yousufzai and Gohar nevertheless show that the implementation of the decision in question is sometimes accompanied by the functioning of a local enforcement agency, the arbakai, commissioned by the traditional jirga itself, or by some other measures which may be understood as concomitant sanctions at the level of the social group, community or locality to which the party to a dispute belongs (but not necessarily at the level at which the jirga itself operates) (ibid.). In other words, the legal decision may be sought at different societal level, such as the legal authority composed of elders from two villages, while its implementation may be an issue of each of the two villages’ elders separately.

As was mentioned, a significant role is played by the costs of bearing the duty of hospitality which forces the hosting parties (or the differing groups to which they are members) to accept the verdict of such a traditional tribunal. This role is similarly played also by “deposit sureties or bonds like weapons or cash money as prior agreement to the eventual decision” (ibid., 64). The unconditional prior consent of the parties with the legal decision of a jirga (waak) which is given in a written or verbal form before the trial also turns the trial into a judicial adjudication:

“In the tribal setup, although Jirga members can call for raising a volunteer force to enforce a decision, but it is not mandatory in all cases. This discretion gives enormous powers to Jirga over the parties who are real stakeholders in the process. Giving a Waak or surrendering one’s rights therefore, on the one hand, may result in a just decision by the Jirga, which will require forced implementation” (ibid., 64).

Again, this description of traditional justice is in stark contrast to the generic model of traditional justice as a restorative phenomenon and a phenomenon of a territorially bounded local community (McAuliffe 2013, 240). Moreover, the authors describe maraca as a form of mediation and negotiation between parties to a dispute, a local non-legal alternative which is parallel to the adjudication of jirga itself (Yousufzai and Gohar 2012, 20). All told, the procedures of traditional justice applied by jirgas should be considered as dispensing regular justice rather than being merely an alternative to the state judiciary (ibid., 20).

This last ethnography completes the picture of jirgas offered by earlier authors as operating “in many horizontal and vertical ways” by pointing to the appeal system which is based on the formation of the “small-”, “mid-”, “higher-level jirgas,” and “highest-level jirgas,” among which a case in question may be moved “from level to level” (ibid., 128; cf. McAuliffe 2013, 240). “When there are popular perceptions of mischief or partisanship in a Jirga, the community [a litigant may instigate this process as well] can get together to raise a more popular based Jirga to confront the injustice supported by the malicious Jirga” (Yousufzai and Gohar 2012, 63). This appeal system is based on everyone’s right to re-examine the matter “by bringing another jirga” while “the decision of the third jirga is usually considered final” (ibid., 20). In this way, the original jirga may also become a party “in a second or even third jirga” in this traditional purview operating without a compulsory recourse to the state judiciary (ibid., 29).

Conclusion: a gradation of legal levels or a dual legal culture?

In part one of this article, we showed that the recent legal-cultural scholarship on Afghanistan undertakes a trajectory from two premises, both abandoned in principle: First, that the law is related to the society of Afghanistan on the level of the state and, second, that there is a “justice vacuum” or at least an absence of fully-fledged legal systems at subsociety levels. As we have shown, legal-ethnographic sources provide remarkably concrete data about the legal levels at which traditional dispute resolution bodies operate in Afghanistan. Applying generic global models of traditional justice to these data usually lead researchers to the notions of “hybrid order”, “normative syncretisms”, or “negotiated justice”, all based on the logic of duality of the state and the traditional justice as its Other. Upon closer examination, however, differing attributes or characteristic features that are constitutive for such distinctions are empirically situated in both the state and traditional justice but assume distinct forms and configurations.

In part two of this article, we undertook a genealogy of Afghanistan’s legal ethnographies that often mention the legal levels at which traditional sociolegal authorities operate, ranging from extended families to the state. Although there has not yet been a systematic analysis of the law with reference to the normative systems of Afghanistan’s society subgroups, these ethnographic observations substantiate the applicability of Pospisil’s theory of legal levels and the dynamics of the centre of legal power in terms of this country (e.g. Pospisil 1967, 1971, 97–126; 1978a, 1978b, 52–60; 2004, 487–537), which is, as we have argued, particularly suited for the understanding of law in dynamic processes caused by the societal instability. Awareness of legal-ethnographic details in such situations leads to the necessity for downscaling, to paraphrase Rottenburg (2012), macroscopic perceptions of Afghanistan’s legal landscape through the conflict between divergent, modern and traditional legal cultures, and instead assume their microscopic, ethnographic variants. This may help to divert from seeing Afghanistan merely as approaching the globally codified model of a legal state, and encourage focusing instead on how the legal systems are transformed in terms their peculiar otherness, especially at level of the societal organisation of justice.

Legal stability and access to justice rank as central needs of the society of Afghanistan (see, e.g. De Lauri 2023). The understanding of their societal limitations cannot be detached from the study of the structure and patterns of allocation of legal authority within the society. The ways through which legal authorities transcend the boundaries of the society’s constitutive segments (extended families, clans, tribes, state) require a reconceptualization with help of more adequate analytical concepts. The analysis of legal ethnographies presented in part two of this article may be interpreted as a justification or at least a signpost for relating traditional justice to Afghanistan’s societal structure on a conceptual level (for clarification of the term “societal structure” see, e.g. Pospisil 1978a, 99). This is to say that the proper unit for understanding jural phenomena is not Afghanistan as a country or a society, but the “maximum decision-making unit (or some cohesive subgrouping within it” (LeVine 1968, 58, cited according to Pospisil 1978a, 101). As some of the presented legal ethnographies suggest the state as an a priori location of a legal system should be conceptually provincialized as just one legal level among others and not necessarily the central one.

The core concept of Pospisil’s anthropological legal pluralism, the “centre of legal power,” has been defined as the “legal level whose authorities pass decisions that prevail in situations of conflict with similar judgments of authorities of groups from other legal levels” (Pospisil 1971, 115–118) From that view, the Afghan state judiciary or the International Criminal Court could at one point have been deemed the highest formal legal level for Afghanistan, leading some to assume that what is framed as “traditional” justice bodies are non-state or merely semi-legal. Nevertheless, as the reviewed legal ethnographies show, being a higher legal level from a formal standpoint does not necessarily equate to being close to the “centre of legal power,” which in Afghanistan’s context is dynamically located at subnational and translocal/inter-community legal levels. As we have seen through detailed reading of Afghanistan’s legal ethnographies, the position of the centre of legal power is not constant and moves dynamically to levels which are often more relevant than the State in a long-term perspective. As centres of legal power, certain jirga levels are the sites from which most of the behaviours of the citizens could be controlled, making them more effective legal channels for the population to internalise legal principles, including human rights.

The reviewed legal ethnographies may also refresh anthropological theory of law on one important point. They allow us to go a step further then Pospisil who claims that the level at which the legal authority effectively operates belongs by necessity to an already consolidated and functioning social group (Pospisil 1967, 24). We rather claim that Afghanistan’s ethnographies of traditional justice actually suggest that a legal level could be sometimes established as a temporary grouping which consists of (legal) authorities of lingering social segments in order to resolve a dispute, a conflict or a crime between their members. In other words, various social groups’ legal authorities may unite into temporary trans-local or trans-societal “circle” or “gathering” with legal authority such as jirga or shura (often established ad hoc) just in order to make a common legal decision while the enforcement of such a decision is still limited to the constituent groupings’ legal authorities (intra-group shura or jirga) and its enforcement agents (such as arbakai commissioned by a jirga) (see, e.g. Tariq 2009; Schmeidl and Karokhail 2009). In this way Afghanistan’s legal ethnographies may represent a corrective to Pospisil’s anthropological theory of legal levels (1967).

Namely, an individual or a group of individuals such as jirga and shura which constituted a legal authority, “impose their solutions upon two parties who stand under the authority’s control” (Pospisil 1978a, 108), but it does not mean of necessity that both parties to a dispute and the authority belong to the same group. The compositional character of Afghanistan’s traditional justice reflects the mosaic of more pertinent subgroups of lesser order to which their members belong. As was mentioned before, we have elsewhere suggested calling this phenomenon “legal sodalities” (Ledvinka and Donovan 2021, 1134).

A final note: Navigating Afghanistan’s legal ethnographies is not easy. The often chaotic entanglement of new data with old inadequate concepts can be confounding. To mine the significant knowledge about traditional dispute resolution bodies (and their legal systems), we have proffered a genealogical guide which revealed the emergence of legal levels at which legal authorities operate and which are established usually in-between (or perhaps above) the collectives (communities or localities) to which the parties to a dispute are either individual or collective members, and among which the State is just one. Even though this article attempts to link them to Pospisil’s anthropological theory of law, the data about these legal levels come from within the reviewed ethnographies, in particular from microscopic reading of the content of the legal ethnographies and could be interpreted as an on-the-ground conceptualisation capable of explaining the real functioning of dispute resolution bodies.

Additional information

Funding

This work was supported by the University of Hradec Králové, Czech Republic (the Univerzita Hradec Králové) through the Specific Research Grant 6/2023, Determinants of cognitive processes impacting the work performance.

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 (2008, 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 (2002, 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 2004, 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 (2012, 16).

5 Wimpelmann points out, with reference to Cramer and Goodhand (2011), 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 2013b, 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 2007, 74).

6 This is The Law on Dispute Resolution, Shuras and Jigras. For details of the negotiation process see also Wardak (2011, 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 2007, 177–178).

8 For a historical overview of Afghanistan’s legal modernisation and state formation, see, e.g Rahimi (2017), or Hopkins (2008, particularly 82–109).

9 For the literature about the conflict in Afghanistan before 2001 see, e.g., Sidky (2007).

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 2011, 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 2013, 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 2012, 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 1978b, 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 2019 and Hanifi Jamil 2019).

15 The most renown comparative account on diverse cultural variants of the law of hospitality is Pitt-Rivers (2012).