Siyasa – Governance: Theory
• Islamic Law recognises the need to obey to
those in power and their role as upholders of
Shari’a
• Political authorities must rule in accordance to
Shari’a, from which they derive their
legitimacy
Siyasa – Governance: Practice
• The ulama lack instruments for coercion and
must lean on the political authorities
• Most of the legal matters except Family Law
have been historically controlled by the state
power
• The government is also able to independently
produce legislation in the form of qanun (state
laws)
Caliphate
• The Caliph (Imam for the Shi’as) is the
religious and political guide of the Muslim
community
• Originally selected, the position of Caliph
became hereditary (in the line of the
descendants of Ali, according to the Shias)
• Ideally a member of the Qurayshites (the clan
of Muhammad from Mecca), the position was
ultimately assumed by the Ottoman sultans
Rival Caliphates around 1000 AD
Sultanat - Secular authority
• Initialy local rulers were legitimased and
officially appointed by the Caliphs, later they
became the protectors of the Caliphs
• Thinkers like Ibn Khaldun (1332-1406) justified
the need for political authority in order to
guarantee the life and property of the citizens
• Independent rulers started legislating more
prominently after the fall of the Abbasids
dynasty (1258)
Political quietism in Islam
• Verse of the Qur’an intimating Muslims to
obey Allah, his messenger and those in
command among them
• Ibn Taymiyyah (Hanbali school- 1263-1328)
statement that 60 years of tyranny are better
than one night of fitna (civil war)
• Rebelling against a ruler is required when his
actions are contrary to Islam
The Ottoman Empire (1299-1918)
Ottoman qanun
• Ottoman sultans inherited the title of Caliphs
from the Abbasids in 1517.
• Ottoman empire made large use of Islamic
qazis in its administration, but they were
subjected to the authority of the sultans.
• Suleyman the Magnificent (r. 1520-1566)
extended the use of qanun with the
collaboration of the Great Mufti.
Ottoman Constitutional reforms
• 1826 – Soppression of the Janissaries
• 1839 – Edict of Gulhane, beginning of the
Tanzimat (reorganisation) moving towards
equality among citizens and modern reforms
• 1856 – Reform Edict, non-Muslim minorities
given more autonomy from the state at the
request of foreign countries
• 1876 – First Constitution, Parliament
• 1877 – Mağalla, attempt at creating a civil
code by integrating foreign models and Shar’ia
Egyptian judicial reforms
• 1875 - a system of Mixed Courts is created to
streamline administration of justice in cases
involving foreigners, based on the French civil
code
• 1883 – Native courts are created along the same
lines, the two will eventualy merge in unified
National Courts
• 1948 – a new comprehensive civil code is drafted,
again based on the French one and with
reference to Shar’ia
Tunisian Civil Code
• 1896-1899 – a commission produces the draft
of a civil code based on Roman and Islamic
Law (D. Santillana)
• 1907 – the draft is approved by Islamic
scholars and promulgated (despite critics by
French jurists)
• 1956 – independent Tunisia enacts a
progressive code of personal status which
gives complete equality to women in matters
of marriage and divorce
Anglo-Muhammadan Law
• Colonial rule often favoured Islamic Law over
customary laws, for example in British India or
French Algeria
• Civil law matters (and until 1860 criminal
cases too) were administered by British
magistrates supported by Islamic scholars
• English common law influenced the
application of Shar’ia over time
Afghanistan
Main characters of Afghanistan
• Landlocked, mountainous country, few areas
of agricultural surplus production
• Crossroads of commerce, joining political
centres beyond its borders
• Mosaic of ethnicities, segmented and
acephalous society ruled by customary laws
• Separation between urban areas and
countryside (hokumat and yaghistan), tribal
resilience to state control, legal pluralism
(Islamic law, state law, customary law)
Afghan ethnicities
Tribal confederation and Durrani
Empire (1747-1819)
• Formation of Afghanistan from the decline of
neighbouring empires, Moghuls and Safavids
• First unification under Ahmad Shah Durrani,
elected as ruler by a Loya Jirga (tribal
assembly)
• King as primus inter pares, tribal balance and
expansion towards the outside, creation of an
empire with parts of India and Persia
Territorial fragmentation 1773-1826:
From the empire to rival kingdoms
Afghan kingdoms and foreign
interventions (1819-1880)
• Loss of tribal balance, dynastyc struggles,
shrinking of territorial expansion and
fragmentation
• Patrimonial rule, weak administration and state
power
• Competition between colonial powers, foreign
intervention (Anglo-Afghan Wars: 1838-1842;
1878-1880)
• Slow re-unification of Afghan territory under Dost
Muhammad (1826-1839; 1843-1863)
The Great Game between Russia and
Britain
After the British defeats, Afghanistan is
seen as “Graveyard of Empires”
Absolutism and Statehood (18801901)
• Abdur-Rahman Khan establishes full state
control over the territory of nowadays
Afghanistan, monopoly of force of the state
• Internal colonialism on semi-independent
areas (War on the Hazaras 1891-93, conquest
of Kafiristan 1895), create a police state to
repress revolts
• Divinely-sanctioned monarchy, absolutism
• Modern army and loyal state administrators
(ghulam baccha) on the model of janissaries
Conquest and Revolt under Abdur-Rahman
Nationalism and Modernism (19011919)
• Mahmud Tarzi, Afghan intellectual and disciple
of Al Afghani, becomes influential at court,
start of the Afghan modernist movement
• Introduction of western technologies and
knowledge (translations of books), emphasis
on education for the reform of Muslims
• Political ideals: Pan-Islamism, Antiimperialism, Asian unity
Mahmud Tarzi, father of Afghan modernism
Shah Amanullah Ghazi (1929-1919)
Amanullah’s reformism (1919-1929)
• International Relations: Afghanistan became member
of the Society of Nations, started foreign diplomacy
• Education: Compulsory primary education, including
efforts at educating girls
• Military: universal draft system enforced countrywide
• Taxation: surveys and rationalisation of land tax,
payment in cash and not in kind
• Religion: state education for mullahs and qazis
• Society: Slavery abolished, civil rights and ID cards,
minimum age for marriage, emancipation of women
• Legal: First Afghan Constitution, separate judiciary and
codified state laws
Amanullah’s Constitution of 1923
• Legislative committee (Mahfil-e Qanun)
formed in 1919, studied Hanafi laws and
Turkish reforms
• In February 1923, the Nezam-nama was
promulgated, giving Afghanistan a cabinet,
state council with legislative functions,
advisory bodies and secular courts
• Emphasis on civil rights, education; prevalence
of penal and civil codes even in Shari’a courts
Reactions to the Constitution
• Many provisions, in particular those on
conscription, taxation and marriage incurred
the hostility of the tribes and the clergy
• Militant frontier mullahs, disappointed by the
state dwindling support for their anti-British
activities and its interference in marriage
customs, preached rebellion among the tribes
of Khost in 1924
• The rebellion threatened Kabul, Amanullah
was labeled an heretic and a dynastic rival
appeared in the rebels’ ranks
The Loya Jirga of 1924
• Religious scholars refused to support the king
unless the Constitution was changed
• Penal code was criticised: ta’zir punishment
could not be pre-determined by the state
• Marriage issues were debated, especially
polygamy and child marriage, and the state
made to retract on them
• The conservative ulama laid the blame on the
liberal Ulama Council which had endorsed the
Constitution, arguing it had mislead the king
Amanullah’s last years
• The push for reforms resumed after a
European “Grand Tour” of the royal couple in
1927-28
• Amanullah convened a another Loya Jirga in
August 1928, reversing decisions of 1924 and
effecting even more radical social reforms
• Kabul’s most prominent ulama plotted against
the king, the outbrak of revolts East and North
of Kabul forced his abdication in January 1929,
followed by a period of civil war
The Restoration of the 1930s
• Most of Amanullah’s reforms were cancelled,
modernism was abandoned
• The Constitution of 1931 heavily stressed
adherence to Islam and the preminence of
Shari’a over positive law made by the state
• State efforts at challenging the role of
religious and tribal leaders ended, these were
rather co-opted by the state (Ulama Society)
• Few laws passed during the next 30 years in
the form of guidelines/principles (usulnama)
New Democracy (1964-73)
• Neutrality during the Cold War allowed for
opening to foreign investments and ideas
• The state had re-gained strength compared to
the rural communities
• An educated young class urged for a change
• The democratic experiment started by King
Zaher Shah included the introduction of a
parliamentary representation (elected Lower
House – Wolesi Jirga; elected/appointed
Upper House – Meshrano Jirga)
Modernisation of urban society (196070s)
The Constitution of 1964
• Puts the Parliament and the king at the source of
the legislative action (while keeping consistency
with Islam as a condition for it)
• Affirms individual rights to property, thought and
expression, association, education, health and
the inviolability of the home
• Legislative action remained weak due to the
conflict between Parliament and executive and
the influence of conservatives (Marriage Law of
1971 carries almost no reforms)
• Shari’a remains the default choice in courts in the
absence of more specific laws
Republic and Civil Code (1973-78)
• The Republic is declared in July 1973 after a coup
d’état inside the royal family, a single party
system is created
• The Constitution of 1977 is similar to the 1964
model, while accentrating much power in the
hands of the President, Sardar Mohammad Daud,
and in the Loya Jirga as a consultive body
• The Civil Code of 1977 is based on the Egyptian
model, and on the Iranian model for what
concerns the laws on personal status
The revolutionary decrees of 1978
• The People’s Democratic Party of Afghanistan (PDPA Khalq faction) takes power in April 1978, it soon
announces broad reforms; the most controversial
decrees are:
• n° 6 concerning loans and mortgages (cancelation)
• n° 7 concerning nuptial gifts and marriage expenses
(prohibiting walwar and setting a ceiling to mahr)
• n° 8 concerning land reform (confiscation of excessive
landholdings and re-distribution to landless people)
• Opposition to the decrees couples with the insurgent
activities of radical Islamist militants operating from
Pakistan and results in an anti-state reaction in most
provinces of Afghanistan, sparking Soviet intervention
in December 1979
Jihad against the Soviet Union (and the
Afghan state) 1978-1992
The Constitution of 1980 (provisional)
• The Parcham faction of PDPA, brought to power by
the Soviet Army, tries to redress previous excesses
which antagonised rural areas of the country
• The constitution mentions adherence to Islamic
principles, together with other principles like the
Universal Declaration of Human Rights
• Islam is mentioned only as a religion, not as the
official religion of state and not as a source of law
• Main reference is to the objectives of the revolution
• Some laws touch legal spheres traditionally
dominated by Shari’a (inheritance)
The Constitution of 1987
• References to Islam are more significant,
comparable to those of the pre-revolutionary
period (Islam is the official religion and every law
must be consistent with it)
• The constitution is an attempt at pacifying the
country, part of the reconciliation policy started
by President Dr.Najibullah
• In a revision made in 1990, the PDPA becomes
the National Fatherland Front, in the hope to
attract minorities and less ideological mujaheddin
commanders
Administration in mujaheddin areas
• Rejecting state control rural communities
reverted to the time-honoured mix of Islamic and
customary law
• Spontaneous local fronts of rebels were soon
absorbed by better organised and funded Islamist
parties (7 major Sunni parties based in Peshawar;
Shi’a parties based in Quetta)
• mujaheddin did not usually enforce a strict
application of Shari’a, they more often adopted
more ideological-political (Hezb-e Islami of
Hekmatyar) or pragmatic military types of
organisation (Jamiat-e Islami of Massud)
The constitutional project of 1993
• Drafted by secular-trained jurists and
approved by a council of mullahs
• Afghanistan is declared an Islamic state, with
the Qur’an as its fundament
• Society and social life must be organised
according to the Qur’an and the Sunna
• Never implemented, as the mujaheddin
factions started fighting against each other
Radicalisation of society during the
years of conflict
The Taleban Emirate (1996-2001)
• Emphasis on “promotion of virtue and
prohibition of vice”, wide use of repressive
force and coercion, interference of the state
over society
• Non-traditional use of fatwas as tools for
governance: state-decreed, police-enforced
and ruled by the amir al mo’minin (commandr
of the faithful) Mullah Muhammad Omar
• Limitations on women rights and enforced
seclusion
Taleban enforcement of public moral
conduct
Pashtunwali and customary laws
• Not codified in a single text, oral “living”
tradition embodied by the community elders
• Based on individual values (pride, bravery,
hospitality, equality) and on mechanisms for
dispute solution (retaliation, compensation,
forgiveness) regulated and sometimes
enforced by collective bodies (jirga, shura,
arbaki)
• War, militancy and foreign intervention have
altered the balance of power inside rural
communities
Post 2001 reconstruction of the State
• Bonn Conference in December 2001: various
Afghan factions get together to replace the
Taleban with international support
• Emergency Loya Jirga (June 2002) selects an
interim government, based on a compromise
solution between technocrats and “warlords”
• Constitutional Loya Jirga (December 2003) gives
the country a new set of democratic institutions
• Presidential and Parliamentary elections (2004;
2005), the first electoral consultation in 35 years
Afghanistan’s new government
The Constitution of 2004
• Afghanistan is declared an Islamic Republic, no
laws contrary to Islamic “beliefs and rules” can be
promulgated
• All discrimination of ethnicity, sex or religion is
rejected, every citizen is equal before the law
(reserved quotas for women inside the
Parliament)
• No official role for the Hanafi madhab, Shi’a
madhab (Ja’fari) is recognised too
• The Parliament is the highest legislative organ
The Media Law of 2009
• A very modern and sophisticated Media Law is
passed by the Parliament, but the president
refuses to sign it
• A second vote by 2/3 of the Lower House puts
the law into effect but the matter is referred to
the Supreme Court who blocks it for a long period
before ruling in favour of the Parliament
• Amendments to increase state control on media
are introduced in 2012 amidst protests by
journalists’ unions
The Shi’a Law on Personal Status of
2009
• Art. 131 of the Costitution recognises the right
of the Shi’as to adjudicate family disputes
according to Ja’fari jurisprudence
• Shi’a Law on Personal Status regulates the
duty of sexual intercourse of a wife to her
husband, dereliction of these duties can be
punished by the man
• Afghan women (both Shi’a and Sunni) protest
in front of Shi’a mosques in Kabul
Taleban courts
• Lack of trained personnel, low salaries and insecurity
jeopardize the application of justice in rural areas by state
courts
• Taleban insurgency is able to re-establish a presence in
most Afghan provinces by 2007, it also starts to administer
justice by way of itinerant courts
• Taleban courts act often in accordance to customary laws,
are quicker and cheaper than state justice and do not
always side with the party with the strongest
political/economic power (as state courts often do)
• The state’s weak judiciary is a main propaganda tool for the
insurgency in rural areas (however, Taleban also punish
those who resort to state courts)
Criticism of democratic institutions
• Increasing reports about corrupted practices and flaws
in the new Afghan institutions have spoiled the
unconditional consensus around “democracy” which
existed in 2001
• Long-term foreign presence has created dissatisfaction
and many legal issues connected to Human Rights or
gender equality are portrayed as foreign-driven agenda
by conservatives
• Islamic Law and principles are once again used more
often in a political sense rather than with consideration
to their correct interpretation and application