Culture and Custom in Nation-Building: Law in Afghanistan

Afghanistan’s restoration of the rule of law has set in motion a renewed debate about fundamental legal principles that has not been seen in the West since the time of the Enlightenment: Who is justice for? Who has the right to seek compensation or justice? Does the state or the individual have priority in seeking justice and delivering punishment? Is law a human creation or is it rooted in divine authority? But it is a debate without an audience in the international community that is assisting the Afghan government in restoring its judicial system because the answer appears so self-evident. Those from societies with long established systems of formal justice automatically assume that it is an ultimate good, that surely everybody wants justice applied by the state. The Afghans who run the formal system assert the same. But they have not won over the population by any means since people, particularly in rural areas, are still fighting out this issue politically and culturally: Is state authority a good idea? Who should set the terms of agreement? Who should determine the rights and the wrongs? This is because so many areas of Afghanistan have operated without (or outside of) formal government institutions for a very long time; not just because of war, but because that is the way things have always been. For example, the assumption that the state has exclusive sovereignty over criminal matters is not fully accepted by most of the Afghan population. Here the family still takes precedence, reserving the right to take revenge or demand compensation when one of its members has suffered an injury. Such injuries extend beyond physical damages to property or person and include damages to a group’s honor that demand retaliation. While Afghan governments formally reject such claims of personal justice, they have never been able to extend the formal system to most of rural Afghanistan; the people there never relied on state institutions and often took offense when the state interfered in what they viewed to be personal matters. The diminished role of formal government institutions has had both positive and negative impacts. One positive impact, for example, is that anarchy has not been as prevalent as one might expect at the local level even when government institutions proved incapable of maintaining order. People took matters into their own hands by mobilizing one’s immediate relatives and larger kinship groups to get justice. But for state-building, it has had very negative consequences. The Afghan population has remained opposed to state systems of justice, which they see less as an extension of the rule of law and more as an imposition of central state authority. The dispute has been central to the politics of Afghanistan for the past 150 years and has yet to come to equilibrium