A Crisis of Legitimacy: The Failed Effort to Westernise Afghanistan's Legal System by Antóin Fletcher

By Antóin Fletcher, SF Law

Reflecting on two decades of US intervention in Afghanistan, the latest report from the Special Inspector General for Afghanistan Reconstruction (SIGAR) tells a story of how US ignorance of the religious and cultural factors influencing the legal framework of that country significantly undermined efforts to establish a unitary and centralised legal system: “[T]he United States misjudged what would constitute an acceptable justice system from the perspective of many Afghans, which ultimately created an opportunity for the Taliban to exert influence at the local level.”

Independent researcher and humanitarian worker Yoshinobu Nagamin has characterised Afghanistan as “a strong society but a weak state.” From a legal perspective, Afghanistan has traditionally been fragmented and decentralised. Customary justice, favouring arbitration over litigation, has long been an integral element of Afghanistan’s legal culture. Ultimately, reforming the Afghan legal system to maximise its compatibility with Western conceptions of the rule of law proved to be short sighted.

Afghanistan is a distinctive study, deserving unique observations and conclusions on legitimising forces. That is not to dismiss the validity of Afghan political values or to imply they are primitive in any comparative sense, but to point out an essential distinction, one tragically overlooked by western politicians, militaries and commentators alike. Furthermore, this article does not attempt to offer a definitive or comprehensive overview of the collapse of the western-backed Afghan administration; it is simply a broad outline.

A contributory factor in Kabul’s (For clarity, Kabul here refers to the Afghan State from 2004 to 2021) failure to establish a functional legal system was a lack of legitimacy. Indeed, legitimacy is an essential attribute for effective governance. In his book, Regime Change in Afghanistan: Foreign Intervention and the Politics of Legitimacy, Asia-Pacific affairs scholar Maley asserts that legitimacy is the “most usual basis for a regime’s coercive capacity” and attributes the rapid decline of former empires to a lack of “organised domination.” Among other administrative and coercive methods, the Taliban employed its legal system as a means of building political power and legitimacy on foundations of competent statecraft. In much of Afghanistan, this feat was beyond the central government.

I will draw here on the recent work of Dr Niels Terpstra, Assistant Professor of Law, Economics and Government at the University of Utrecht, to discuss legitimacy in both a pragmatic and moral sense. Dr Terpstra briefly defines these terms: “Pragmatic legitimacy is based on the provision of services, protection, or even a willingness to share power, while moral legitimacy is based on ‘narratives of goodness, compatibility with existing norms and moral codes…”

Pragmatically, the Taliban attained legitimacy from its ability to restore law and order, albeit in often ruthless terms, in vast swathes of rural Afghanistan where the Kabul administration could not govern. In this effort, the Taliban also developed a sophisticated network of courts to administer justice efficiently and accessibly. Restoring order to a country scarred by civil war and chaos was a priority of the Taliban during its first period in government, and after 2001, this legitimising tactic became relevant once again. In 2013, the Asia Foundation cited insecurity as the greatest problem faced by Afghans. The World Justice Project Rule of Law in Afghanistan Report for 2019 found that while a majority of Afghans felt the conventional legal system could bring criminals to justice, just over half felt that the punishments employed were appropriate.

Additionally, as conflict studies scholars Jackson and Weigand observe, while Kabul’s courts were noted for their general dysfunctionality, the equivalent Taliban system was perceived as fair, efficient and accessible. This procedural efficiency, while sometimes yielding substantively or procedurally unjust decisions, was popular with many rural Afghans. For example, Nagamine, in his work The Legitimization Strategy of the Taliban’s Code of Conduct, relays an instructive story of a citizen of Kabul who, relying on conventional courts and despite paying a significant bribe, could still not access plots of land he had purchased due to what the author calls “administrative hassle.”

Accessibility further bolstered the reputation of the Taliban as the legitimate legal arbiters in much of Afghanistan. Outside urban centres, the central government had neither the infrastructure nor the security to operate coherently.

Individuals residing in government-run districts could still resort to the Taliban courts even if one did not operate locally. Crucially, the Taliban had the territorial control and coercive ability required to enforce their judgements.

Whereas the state courts caused confusion for a citizenry unaccustomed to western legal norms, the Taliban courts administered law on more familiar grounds, explaining judgements to litigants and, as Jackson and Weigand note, assisting in the drafting of causes of action. This traditional means of adjudication was popular in Afghanistan where, as SIGAR reports, 80 to 90 per cent of all disputes have historically been resolved by informal, community-based means. Middle Eastern and Islamic law expert Professor Martin Lau reaffirms this observation, holding that, in Afghanistan, “non-state fora for the settlement of disputes … have always played an important role in the legal system…”

For the Taliban, moral legitimacy was also essential. After insecurity, the Asia Foundation cited corruption as the second greatest area of concern for Afghans in 2013. The United Nations Office on Drugs and Crime’s 2010 report, Corruption in Afghanistan, found that half the Afghan population felt international organisations and NGOs were corrupt. Nagamine has attributed this perception, often well founded, of external interests in Afghanistan as inherently corrupt with the rise of Islam as an attractive and honest alternative.

In sharp contrast with the Kabul legal infrastructure, the Taliban, according to Jackson and Weigand, does not accept bribes with the same regularity. The bribe culture upon which much of the centralised administration of justice was based irreparably tarnished the reputation of the conventional judiciary, thereby calling into question the impartiality of the law. In their 2019 report on Afghanistan’s legal system, the World Justice Project found that bribe culture was pervasive. Obtaining official documents like birth certificates, permits or government IDs came with a supplementary cost. The same report found that 59 per cent of Afghans perceived their judiciary as corrupt.

This offer of a moral and functional alternative, one influenced by a strict Islamic code, bestowed on the Taliban courts a significant degree of legitimacy in a country plagued by inefficiency, corruption and suspicion of external political entities. While the Kabul government cited Islamic texts as a source of national law, the relative rigidity and perceived faithfulness with which the Taliban interpreted, and applied Sharia delegitimised the efforts of Kabul. I stress here “perceived faithfulness,” as the Taliban’s own interpretation of Sharia is most certainly not exclusive or arguably even faithful.

Frank Ledwidge, Fellow of the University of Portsmouth and a former British military officer, has stated that “there is no more effective weapon in the Taliban’s armoury than an effective court.” Regardless of whether a legal dispute concerned land, the family, commerce or otherwise, the Taliban issued remedies consistent with its own ethical code. This, in turn, regulated the moral standards of the wider community. Furthermore, the relative support for the Taliban’s shadow courts equates to a degree of political validation. On this point there is a crucial caveat; it is not immediately clear if this support was based on genuine satisfaction with the Taliban’s legal process, or motivated instead by the threat of violent retribution from the insurgency for conveying dissatisfaction.

The ability to derive legitimacy by exercising effective and relatively popular governance, and efficiently utilising this legitimacy to consolidate control across regions was critical in the Taliban’s rise to power. “The Taliban’s strategy,” as outlined by Jackson and Weigand, “is to gradually increase their control over society. They use their parallel governance system to keep people at least marginally satisfied and boost perceptions of their legitimacy. This, in combination with their coercive power, secures the population.” The same authors discuss the Taliban’s ability not simply to coexist with the central and customary legal systems, but to gradually replace them as competitors.

Indeed, this lesson of collapse in Afghanistan highlights the danger and futility of attempting to compensate for a lack of legitimacy by force alone. It is a lesson that, if grasped in the early days of the Taliban’s downfall two decades ago, may well have led to a sustainable, democratic and just authority in Afghanistan, one enjoying popular support. It is a lesson that, if grasped now, may avert comparable geopolitical disasters tomorrow. The United States chose to ignore entrenched cultural and historical norms that had existed in Afghan society for centuries, advocating instead for what was politically expedient at the time. As the 2021 SIGAR Report notes, “U.S. officials chose to pursue a vision for Afghanistan’s justice system that reflected American values and preferences, without sufficient regard for what was practical or possible.