How the Taliban Justice System Contributed to their Victory in Afghanistan

While the Taliban’s victory in Afghanistan has led to much speculation about the regime they will establish, the limited knowledge we have about the Taliban leadership suggests caution. The recurrent focus on the potential splits, within a movement that has stayed united through two decades of US targeted killings aimed at its leadership, illustrates the level of ignorance about its upper echelons. Rather than conjecture about the positions of Taliban leaders and their relationships, the most reasonable way to think about the regime they are establishing is to look at their administration of rural areas while they were an insurgency. While the Taliban gained power through arms, they also won the war through the establishment of a judicial system that allowed them to embody the state in the eyes of many Afghans.1I develop this argument in greater detail in La guerre par le droit. Les tribunaux Taliban en Afghanistan (Paris: CNRS Editions, 2021), currently in translation.

A radical legal uncertainty for Afghans

The success of the Taliban court system resulted from the consequences of Western intervention in the legal realm in the context of radical legal uncertainty for Afghans. Contrary to the common understanding of civil wars as situations of lawlessness, conflicts like Afghanistan are characterized by intense competition between legal systems for official status. The proliferation of competing authorities results in conflicting norms and verdicts, which profoundly destabilize social structures and aggravate disputes around certain issues, particularly property relations and ethnic, religious, class, gender, and age hierarchies. Law, which always is an essential realm in the structuring of the State and society, therefore plays an even more decisive role as it becomes a key stake in the civil war.

Indeed, when the United States intervened in Afghanistan in 2001, Afghan society had already endured 23 years of civil war, which had resulted in an explosion of legal disputes. The uprising sparked by the Communist coup d’état of 1978 led, alongside armed clashes, to a revolution in the legal field. Law and justice became a stake in the struggle between the Communist government and the insurrection, but also in the competition between elites (tribal notables, university graduates, and religious clerics) over who was to regulate social relations. While the Afghan state during the twentieth century had gradually secularized the judicial system, the victory of the Mujahideen by the end of the 1980s gave the religious scholars (ulemas) a monopoly on the legitimate exercise of law. After the fall of the Communist regime in 1992, armed factions, all claiming to uphold Islamic law, fought for power. This configuration favored the Taliban, a clerical movement borne in reaction to internecine infighting and that relied on law and religious legitimacy to govern. The decades of civil war profoundly affected social structures, reshaping ethnic hierarchies and property and gender relations, all the more as the various armed movements exploited these issues to impose their rule. In turn, these transformations led to an increase in disputes, fueled by competing legal authorities, and thus the imposition of contradictory verdicts.

The United States and its allies revived the struggle over law and justice with new players: the regime it installed and the Taliban movement it had ousted from power. On the one hand, the legal system gradually introduced by Western countries resulted in increasing uncertainty for the Afghan population. A maladapted corpus of laws, largely dictated by the inconsistent priorities of the various donors (state-building, terrorism, narcotics, money laundering, gender promotion), as well as a police and a judiciary undermined by nepotism, led to an unbalanced legal system favoring the elites and inaccessible to the majority of the population. Western lawyers, experts, humanitarians, military, and diplomats worked to have laws enacted that conflicted with existing legislation,2Michael E. Hartmann and Agnieszka Klonowiecka-Milart, “Lost in Translation,” in The Rule of Law in Afghanistan: Missing in Inaction, ed. Whit Mason (Cambridge University Press, 2011), 266–298. influenced appointments to key institutions,3For instance, in 2006, when several Western embassies pressured President Karzai to dismiss the most conservative members of the Supreme Court, including its president. Astri Suhrke, When More Is Less: The International Project in Afghanistan (London: Hurst, 2011), 197. invented ad hoc “traditional” councils, and interfered in court cases.4For example, the passing of the EVAW law and the cases revolving around its enforcement. Torunn Wimpelmann, The Pitfalls of Protection: Gender, Violence, and Power in Afghanistan (Oakland, CA: University of California Press, 2017). Moreover, the judiciary’s lack of independence favored the regime’s strongmen: former commanders from the 1990s who seized entire sections of the state apparatus. These violent entrepreneurs exploited a system for appropriating resources by force,5For the concept of “violent entrepreneurs,” see Vadim Volkov, Violent Entrepreneurs: The Use of Force in the Making of Russian Capitalism (Ithaca, NY: Cornell University Press, 2002). in which the courts lent a legal veneer to often violent de facto situations.

On the other hand, Western troops, starting with the US military, systematically circumvented Afghan law. In carrying out their operations against Al Qaeda and the Taliban, including a campaign of targeted killings that heightened local rivalries, they exempted themselves from any Afghan legal framework. Moreover, Western militaries set up so-called “customary” or “traditional” councils that multiplied conflicting verdicts. As a UN Assistance Mission in Afghanistan (UNAMA) official in the South East told me in 2010, just in the province of Paktya, “there are four types of jirga that each deal with private conflicts: those organized by USAID, by the US Special Forces unit, by the provincial governor, and the district shura [or council] associated with the central government. Per the Constitution, district shura and village shura should have been set up everywhere, but this has never been done systematically. Each type of council follows its own logic. Creating shura makes it easier to control local actors and local interlocutors and bypass institutions set up by others.” Given their uncertain legal status, these, the jirgas and shuras, further undermined the regime’s judicial institutions.

Finally, the Western militaries supported various militias, effectively handing to various potentates the means for opposing the central state and eliminating their local rivals. Through its tribal and ethnic vision in Afghanistan, the US military contributed to a polarization of private conflicts along identity lines, making their settlement more intractable. The essentialist interpretations of Afghan culture by US soldiers promoted strategies of ethnic or tribal instrumentalization. They allowed entrepreneurs of violence posing as community representatives to obtain weapons, seize positions of power, and insinuate themselves as indispensable intermediaries, at the expense of official institutions. The alleged allergy of Afghans to the state became a self-fulfilling prophecy.6For the US Army officers making that argument, see Stanley McCrystal, COMISAF Initial Assessment (Unclassified), Washington, US Department of Defense, 2009; Jim Gant, One Tribe at a Time: A Strategy for Success in Afghanistan (Los Angeles: Nine Sisters Imports, 2009). For an influential academic formulation, see Thomas Barfield and Neamatollah Nojumi, “Bringing More Effective Governance to Afghanistan: 10 Pathways to Stability,” Middle East Policy 17, no. 4 (2010): 44. It caused the US military to strengthen strongmen they regarded as local, when they in fact derived their power largely from international assistance.

The Taliban court system

Driven from power in 2001, the Taliban gradually reestablished themselves in the countryside, village by village, with the support of Pakistan. The movement claimed the mantle of a legitimate regime forced into exile by a foreign invasion. This allowed it to mobilize the population by painting Western troops as occupiers. Notwithstanding their limited resources and the constraints of having to operate clandestinely, the Taliban set up courts in most of the country. Despite the war, they put in place mechanisms for people to obtain legal rulings at the local level. Yet hindering the recognition of Taliban judges were several dynamics: military operations, the dependence of judges on fighters, and the contradiction between, on the one hand, the military imperatives of staying on the move and, on the other, the appearance of objectivity that judges had to cultivate to remain credible. Nevertheless, the integration of judges into a bureaucratic system, the recruitment of clerical personnel schooled in hierarchical functioning, and the establishment of standard procedures allowed the Taliban to produce, even under wartime conditions, a relatively predictable court system. First, the movement integrated judges into a centralized judicial organization that was inspired by the institutional architecture of the Taliban regime of the 1990s. A rotation and monitoring system was designed to ensure judges’ good practices and their impartiality on local issues.

Moreover, the recruitment of judges in the Deobandi madrasas to Pakistan and Afghanistan permitted establishing a particularly economical system, because it made it unnecessary to train specialized staff or draft a legal code.7For further reading on the Deobandi clerics in South Asia and their organizing around a network of madrasas, see Barbara Metcalf, Islamic Revival in British India: Deoband, 1860–1900 (Princeton, NJ: Princeton University Press, 1982); Muhammad Qasim Zaman, The Ulama in Contemporary Islam: Custodians of Change (Princeton, NJ: Princeton University Press, 2002). Thus, the Taliban benefited from the education and ideological framing work performed by madrasas on young Afghans from rural areas and refugee camps. After ten years in religious schools, far from their families and villages, the ulemas shared a range of theological and legal skills, a bureaucratic habitus, and a worldview that set them apart from their home environment. The education acquired in the Deobandi madrasas underpinned the coherence of the verdicts as well as their Islamic character, which was based mainly on the use of Hanafi case law in which the judges were trained. This common socialization focused on hierarchical and bureaucratic habits, forging graduates who are particularly suited to work collectively as an administration. The Deobandi ideology, which accommodates a role for clerics in social regulation while denying the political character of their actions, fed into a particularly effective claim of objectivity in the legal field.

The Taliban judicial system thus relied on the dual roles of its judges: They acted both as magistrates in the legal field and as ulemas in the religious field. The granting of ulema status by madrasas formally independent of the armed movement promoted social recognition of the legal competence of the judges, on top of them being appointed by the Taliban. While the essential problem of this recognition derived from the judge’s simultaneously militant and legal nature, certification by a third-party institution allowed the Taliban to circumvent this difficulty: Judges were socially recognized as competent to decide disputes and impose sentences both because of their appointment to a judicial system and because their knowledge of Islamic law was vouched for by an independent institution. Thus, by virtue of their status as ulemas, they were recognized as competent to decide the cases before them, and, as Taliban-appointed judges, they had the means to enforce their verdicts.

Unlike most contemporary armed movements, the Taliban discarded usual modes of institutionalizing the judicial system with places (buildings, courtroom configuration) or attributes (specific dress, symbols, objects), because they increased the risks of Western troops homing in on the judges. They instead adopted the devices and rituals of rural social life, blending into the population while remaining accessible to their users. The formalization of the Taliban judicial system involved rudimentary, but rather predictable procedures, from the complaint to the sentencing and the possibility to appeal. It contrasted sharply with a regime that, while conspicuously mobilizing the visible attributes of state justice, fostered legal uncertainty by frequently breaking its own rules. In the context of war and given the movement’s limited resources, the respect of a procedural organization—from complaint to verdict and imposition of sentences—conditioned compliance with the Taliban judges’ decisions.

The production of a social order through courts

The Taliban judicial system participated in the production of a social order at three levels: the structuring of other branches of the armed movement, the legitimization of the law, and the imposition of a social project. First, the Taliban judicial system was one part of a broader administration, which incorporated the formal principles of state functioning. Within this clandestine government, Taliban judges were part of a system of cross-recognition and legitimization based on a differentiation between political, military, and judicial functions. Taliban leaders employed judges to enforce the hierarchy within the movement to maintain a centralized authority. However, without a specialized police force, the judges depended on combatants to enforce rulings. So, the ability of the judges to rein the commanders in effectively depended on their respect of the chain of command. While subordinate commanders were progressively forced to join the ranks, the most important ones had the means to resist, forcing the political leadership of the movement to negotiate arrangements.

Second, the judicial system was an essential part of the Taliban’s claim that they were the state in Afghanistan. In practice, the political and strategic effectiveness of the courts is difficult to assess, although there are many indications that they facilitated the movement’s propagation in previously hostile regions. The Taliban judges operated in a legal field polarized by the transposition of political confrontation into law and justice. Therefore, users’ assessments of the competing judicial systems had a direct effect on the ongoing struggle to impose a monopoly on the application of the law. The legitimization of the Taliban courts amidst the war was possible only relative to that of the regime courts and the rejection of how foreign operators intervened in legal and judicial affairs. In comparison, Taliban judgments were considered more effective, first because they were more respected locally than those of the government. They were seen as a source of predictability in daily life, helping to establish the legal nature of the Taliban verdicts and thus the legal nature of their hold over the population. However, the international recognition enjoyed by the Kabul regime gave its courts an official—and therefore more lasting—character, which the Taliban judicial system never achieved.

Finally, the Taliban judicial system participated in the production of an alternative social order characterized by social conservatism and moral rigor. As a whole, its verdicts show the movement’s plan to preserve—that is, to reproduce—the property structures and social hierarchies of the prewar period. Thus, as during the 1990s, the judges imposed an identity regime, which denied the importance of ethnic issues, while favoring the Pashtuns, and relegating the Shiites to a lower status. In addition, they guaranteed private property by combating the violent land grabs by 1990s commanders and regime strongmen, but in the process, they also ensured the reproduction of economic inequalities around land ownership. However, while the Taliban appeared to be more flexible than in the 1990s with respect to certain practices (music, mobile phones, films, games), quite the opposite was the case when it came to gender issues. In this area, the judges ruled with a particular severity: They guaranteed a system of patriarchal domination based on repressing deviance in the public sphere and on delegating the use of violence in the domestic space to the heads of families. This conservative program legitimized the social rise of religious elites. Indeed, the judges attending to the public good concealed a work of universalizing the special interests of the ulemas. By reshaping the state and society through the application of Islamic law, judges promoted an order in which religious status would determine access to positions of power, at the obvious expense of nonreligious elites.

The precarious reestablishment of the Islamic Emirate

Governing territories beyond the control of the incumbent government is certainly different from running the state. The Taliban were able to operate schools and clinics at low cost, and now they have to pay the salaries of all civil servants. They could focus on the few public services that they delivered better than the government, while at the same time not taking on economic development, an area in which the Taliban have proven to be particularly incompetent in the past.8→Gilles Dorronsoro, Revolution Unending: Afghanistan, 1979 to the Present, trans. John King (New York, Columbia University Press, 2013).
→William Alexander Strick van Linschoten, “Mullah Wars: The Afghan Taliban between Village and State, 1979–2001,” (PhD diss., King’s College London, 2016). Furthermore, the way they govern will have very different consequences now that they are in power, all the more so since society has tremendously changed after two decades of international intervention.

Since they took over, the Taliban have reestablished many practices and institutions of the Islamic Emirate. The replacing of the women’s ministry with the Ministry of Prayer and Guidance and the Promotion of Virtue and Prevention of Vice brutally illustrates this point. So does the proclamation of a constitution that legitimates the concentration of powers in the hands of the clerics and the integration of the former regime’s police officers and soldiers with Taliban combatants to reconstruct the security forces, a measure similar to their integration of former communists in the ministries and army in the 1990s.

The Taliban will have to govern cities, which might create difficulties for them. While their handling of land issues may offer them some popularity among the urban population that was particularly affected by the land grabbing of the previous regime’s elites, the brutally patriarchal nature of the moral order they impose may put them in a difficult position as they gesture toward adhering to international gender norms to gain international recognition. The Taliban have won the war in a country that has suffered 43 years of civil war and is facing international isolation and famine after years of historic drought. While the way the Taliban have governed as an insurgency will certainly influence their future practices, how they respond to and manage the critical situation Afghanistan is currently facing will play no less of a role in establishing the character and the legitimacy of their government.

Banner photo: Special IG for Afghanistan Reconstruction/Flickr.