Afghan Legal History Project

The Islamic Legal Studies Program (ILSP) at Harvard Law School launched a research initiative in the summer of 2003 to examine the legal history of Afghanistan. The Afghan Legal History Project (ALHP) brought together a group of five full-time researchers and a volunteer reading and discussion group that regularly generated feedback to the researchers as their work progressed. In addition, the project brought several scholars of Afghanistan and field experts to ILSP to conduct seminars and give lectures over the course of the summer to shape group discussion and research.

The idea for such a project began with a visit by the Director of ILSP, Frank Vogel, to Kabul in the fall of 2002, where he immediately recognized that reconstruction efforts were crippled by a lack of understanding of numerous issues concerning the role of law in Afghanistan. Sensing the urgent need for knowledge of the Afghan legal system, not only through organizing readily available facts, but also through putting together a nuanced understanding of the complex history of the legal system, he inspired the creation of the Afghan Legal History Project.

Making its primary lens Islamic law, the project attempted to focus on the unique role Islam plays in Afghanistan, in its various manifestations, and as it exists alongside and sometimes in opposition to customary law, tribal law, and positive law. The team's starting point was that Islamic legal history is an essential and hitherto under-utilized tool for understanding current events, and that Afghanistan in particular offers an extraordinarily dramatic yet exemplary and instructive chapter in modern Islamic legal history. Appreciation of the role of Islam in Afghanistan's legal past is vital to ongoing efforts to establish a viable legal system for the future of the country and its people.

The objective of the project was also largely defined by what it would not seek to do. First, the group would not cover or comment upon current events or process news stories. Moreover, it would shy away from policy analysis and general legal reconstruction work, projects for which there exist a number of groups better equipped to undertake them. To this end, the group would avoid offering recommendations as to preferred courses of action. Final academic judgments that one would expect only from more ambitious monographic treatments would also not be attempted. However, by highlighting certain lines of inquiry, the group would signal their importance and make propositions for further study where appropriate.

The comparative advantage of the project lay above all in the vast number of untapped resources available to it, such as vital literature and experts. Through immersion in this literature, through exposure to experts, and cross-fertilization among members of the research group, the group developed sufficient expertise to make an important contribution to the existing body of knowledge. By taking a few steps back from policy, illuminating terminology, paying sustained attention to the aforementioned neglected issues, patiently facing academic complexities, and underscoring the relevance of history to today's unfolding events, the group developed a level of discernment that will help to clarify and prioritize the relevant issues.

It was the hope that the end products of this project would fill gaps in the basic knowledge of the legal history of Afghanistan and present a fuller picture of Afghan legal culture to inform current political developments. The goal was to keep the tone and positioning of the papers academic and neutral. The intended audience is the large community of NGOs, donors and policymakers, both Afghan and international, and the primary aim is to increase sensitivity and inform decision-making and discussion among those participating in the rebuilding of Afghanistan.

Two of Professor Vogel's students, Rebecca O'Brien, a first-year law student, and Kristin Mendoza, a first-year graduate student in Middle Eastern Studies, teamed up to structure the project. It was determined that the ALHP research group would produce short to medium length research papers on topics relating to Afghan legal history, including past constitutions, court systems, and general legal structure. Researchers would look at the diverse influences on Afghanistan's legal and political development, including classical Sunni thought, Shi'ism, and Sufism. The role of tribalism, customary law, and secular ideologies were considered in order to fully explore Afghanistan's rich legal history.

The final research group was made up of students with complementary interests and skills: Palwasha Kakar and Kristin Mendoza were Harvard graduate students in the Divinity School and Center for Middle Eastern Studies, respectively, while Justin Stein was fulfilling an M.A. at Tufts' Fletcher School of Law and Diplomacy, from which Bruce Etling and Neamat Nojumi were recent graduates.

The researchers began meeting together regularly during the spring to start preparatory bibliographic work and discussion. Next, each began shaping individual topics through consultation with Professor Vogel. Stein would consider minority rights with special reference to the Shi'i Hazara, Mendoza would trace ideological lineages of Islamist groups in Afghanistan, Etling would examine the historical role of the ulama and legal education, Kakar would work on women's status in the Pashtunwali code, while Nojumi would formulate a general overview of tribal and customary law in Afghanistan. These topics comprised the team members' papers for what was a ten-week period of research and writing.

The research team had the benefit of summer seminars conducted by Frank Vogel, Aron Zysow, Christina Jones-Pauly, Thomas Barfield, Faizullah Kakar, Marvin Weinbaum, Amin Tarzi, and Larry Goodson, much of whose own work proved indispensable for the research team in laying a backdrop for the project. Their continued availability for discussion of the papers was critical for the success of the process.

In addition, the volunteer reading and discussion group provided invaluable feedback to the research team as their papers went through various phases of completion. Meeting one evening every alternate week, they remained dedicated to the project's overall objectives as they read and re-read ongoing work and offered up suggestions and thoughtful criticism. Many of them had deep-seated interests in Afghanistan and the topics covered. Especially during the final weeks of the summer, the group assiduously reviewed the products, many times continuing discussion well beyond the official end of scheduled meetings. They gladly attended additional sessions packed into the final weeks to help researchers meet deadlines with as much feedback as possible.

The papers that follow are the current completed products of the Afghan Legal History Project. We hope that by having access to this research, the target community can better understand aspects of existing circumstances that emerged from, and are fundamentally shaped by, Afghanistan's inheritance as they carry out their efforts on the ground. It is clear that knowledge of these factors will make the current situation more comprehensible and familiar, rather than arbitrary and remote.

Islam and Islamism in Afghanistan, by Kristin Mendoza

Tribal Law of Pashtunwali and Women's Legislative Authority, by Palwasha Kakar

Legal Authorities in the Afghan Legal System (1964-1979), by Bruce Etling