BizCLIR

A recurrent theme is announced repeatedly by virtually every non-governmental organization (NGO) and government-sponsored donor organization operating in Afghanistan: "This is not merely a post-war economy, this is a post-devastation economy." Yet, out of the ashes of nearly three decades of severe devastation wrought by the combined hardship of wars and droughts and international isolation, a new commercial legal system is resolutely rising. Its Father is the Islamic law (Sharī’ah) that governs all aspects of life in this unequivocally Islamic country, and its Mother is the centuries-old traditional or customary law that continues to guide personal and business relationships, especially in the outlying provinces distant from the more progressive urban environment of Kabul. But its Nursemaid is clearly the modern legal system of civil codes (Qanūn) first adopted in the early to mid-20th century and currently being rewritten with the assistance of myriad NGOs and other donors. It is this complex intertwining of Sharī’ah, customary law, and Qanūn that weaves together a unique, complex, and colorful fabric of commercial law and institutions.

It is difficult to separate out which of these three facets of the commercial legal system – Sharī’ah, customary law, or Qanūn – has primacy. The answer depends largely on who is answering the question. NGOs and the international donor community tend to promote Qanūn through modern law reform and seek to incorporate broader international standards. For them, and for many Afghans in the Afghan business community, this is seen as the means to accomplishing the quick and effective economic jump-start so desperately needed. Yet, there are also those voices in Afghanistan, including many in the business community and government, who are quick to respond that Sharī’ah is paramount. After all, this is an Islamic Republic, they point out, one whose laws and government are legitimate only to the extent that they are not in conflict with Sharī’ah. Finally, although not as prominent perhaps in the urbanized and more modern environment of Kabul, one also is easily reminded of the importance of pre-modern customary law, especially the Pashtunwali code of the Pashto culture (the largest ethnic/tribal group in Afghanistan, variously estimated to encompass somewhere between 38% and 50% of Afghans), that often blends almost indistinguishably in many ways with Sharī’ah.

In contemplating the interplay and overlay of Sharī’ah, customary law, and Qanūn, the recent cautionary observation of a prominent business leader in Kabul resonates: Sharī’ah, ultimately, “is the standard against which all laws are measured.” Indeed, a report on the Afghan legal system prepared in 2002 under the auspices of the International Commission of Jurists went so far as to predict (“with some confidence”) that “past experience would suggest that any attempt to implement and enforce secular statutory laws which depart from customary and/or particular interpretations of Islamic law is liable to be met with protests and perhaps even civil unrest.” These past experiences, notably, include the unsuccessful attempts by more than one Afghan ruler to perhaps too rapidly or too aggressively modernize Afghanistan’s legal system during the 19th and 20th centuries. As another prominent Afghan business leader pointed out recently during a discussion in Kabul, “history reminds us to be careful: there was a popular uprising in Afghan history when the King tried to modernize the laws too fast by bringing in Western laws.” That particular ruler (Amanullah), the author of Afghanistan’s first modern Constitution in 1923 and the ill-fated innovator of significant social and legal reforms through a series of codes and decrees (largely influenced by Ataturk’s reforms in Turkey), found his reforms rejected by the ‘ulamā’ and tribal leaders that feared losing their power. These groups formed an alliance against Amanullah and quite easily incited the largely rural and traditional Afghan population into a popular uprising that overthrew his rule. Indeed, it is perhaps quite instructive that subsequent rulers, such as Zahir Shah in the 1960’s, successfully undertook more moderate legal reforms that not only avoided any direct conflict with the ‘ulamā’ and their realm of authority, but also carefully included them and considerations of Islamic jurisprudence in the drafting processes and ultimate reforms. Even today, President Hamid Karzai is careful to consult with the Afghan Council of ‘Ulamā’ on various matters, and recently ordered the funding of 500 new posts for Islamic scholars within the Ministry of Hajj and Religious Endowments.

It is important to note that, even among learned ‘ulamā’ and higher-level mujtahidun, Sharī’ah itself has always been difficult to fully define and circumscribe. Sharī’ah is the final divine law established by Allah (God), governing all aspects of human life – including religious practices, morality, criminal matters, family matters, and commerce. Because it arguably is impossible to fully comprehend all of that which Allah intends for His followers and commands them to do, Islamic scholars have, more than a millennium, struggled to determine Sharī’ah. Briefly, Sharī’ah firstly is determined by reading the Qur’ān, the textual word of Allah as received by the Prophet Mohammad. Secondly, Sharī’ah is determined by studying the example of the Prophet Mohammad – his words and behavior, as recorded by his Companions and followers and transmitted from generation to generation through narrative reports. Finally, Sharī’ah is determined by utilizing a rigorous methodology that employs, for example, analogical reasoning, seeking equity, advancing the public good, inferential reasoning, and consensus. By rigorously applying these methods of reasoning and interpretation, qualified Islamic religious/legal scholars can formulate an opinion on a difficult point of Sharī’ah.

Because Qur’anic hermeneutics and the applicable methodologies require such rigorous and advanced scholarship, defining Sharī’ah has generally been the province of a handful of well-respected and renowned scholars over the centuries. Gradually, these scholars differentiated into distinct fiqh (jurisprudence) madhahib or schools of legal thought – estimated at anywhere from nineteen to possibly hundreds over the first few centuries of Islam. Each madhab employed a slightly different methodology to interpret Sharī'ah and deduce divine law. Today, the dominant surviving four Sunni madhahib and the predominant Shi'ā fiqh madhab agree as to the fundamentals of this methodology, although they still disagree with each other as to the precise rules of interpretation to be employed. Early on, the scholars within each madhab also reached some consensus as to specific rulings on significant issues, and the agreed-upon rulings became identified as the position of the madhab on those issues.

In Afghanistan (and among an estimated majority of Muslims world-wide), the dominant Sunni madhab is the Hanafī, which is based on the scholarship of its founder, Imaam Abu Hanifa (d. 767 AD). The predominant Shi'ā madhab in Afghanistan is the Ja’fari madhab, based in turn on the scholarship of the Shi'ā Imaam Ja'far al-Sadiq (d. 765). While the jurisprudential, theological and historical distinctions between these two madhahib are of relatively minor importance for the purposes of this Diagnostic, it is important to note that various laws (including the Constitution, as discussed below, and especially the criminal and family laws) do take into account their differences, largely for political reasons. On the other hand, it is also noteworthy that political expediency has led to some selective adoption of fiqh (Sharī’ah-based jurisprudence) principles from among the several dominant Sunni and Shi'ā madhahib – a practice which some Islamic scholars both within and outside Afghanistan criticize as quite wrongly fitting the law to suit one’s personal interests, verging on apostasy.