Living Laws: The sharī’a and pashtunwali

Author: Nicholas Mancini

Afghanistan’s legal system has been shaped by its long history and diverse population. Historically, this system has drawn from two sources of law: the sharī’a (Islamic law) and customary “tribal” law.1 The sharī’a of Afghanistan follows the Hanafi tradition, as recognized by the country’s constitutions since 1923. Systems of customary law are found throughout rural Afghanistan, and their practices vary based on locality. Pashtuns, the country’s largest ethnic group, adhere to the most elaborate of these systems: pashtunwali.

In some periods and places, the sharī’a and pashtunwali were thought to “overlap,” and functioned seamlessly. Their relationship, however, has been one of contention as well. At times, the sharī’a has proclaimed autonomy or even exclusive legal authority over pashtunwali. For example, as state institutions of Kabul withered during the Soviet-Afghan War (1979-89), the Islamic clergy (‘ulema) rose throughout Afghanistan’s countryside.4 They imposed the sharī’a on areas controlled by the mujahideen (“holy warriors”) and replaced customary law.5 Similarly, the Taliban (1996-2001) imposed their quasi-orthodox sharī’a, showing little affinity for tribal politics. While the sharī’a and pashtunwali have conflicted, neither have ever displaced the other in practice. This paper endeavors to explore this harmonious, yet contested relationship.