Why are Customary Pashtun Laws and Ethics Causes for Concern?

By Aisha Toor

The Taliban has caused renewed alarm in recent months. The inability of NATO troops to defeat the Taliban as quickly as many in Europe and the United States initially expected, coupled with rising Afghan discontent about civilian casualties, has exacerbated Taliban propaganda.

The result has been a Taliban campaign to expose the Afghan public’s angst at the West’s current political and military strategy in the country. Among the more provocative ideas that have been given attention is the notion of reconciliation with the Taliban (Gilles Dorronsoro). While such an idea would have seemed preposterous a few years ago, more and more people have come to recognize that it may be the only way to resolve Afghanistan’s problems and end the conflict. In order to even consider rectifying a relationship with the Taliban, it is critical to understand who they are, and where they are coming from.

According to Fareed Zakaria, we must “talk to the Taliban.” Since the Taliban is immensely influential in the Pashtun-dominated southern and southeastern areas of the country, it is beneficial to understand the ethnic codes that have allowed the Taliban to thrive. (See Carnegie Endowment’s Ethnicities and Taliban Map©) 

The Pashtuns are the principal tribal group in Afghanistan, divided into subtribes, clans, sections, and subsections, based on lineage. There is strong clan cohesion which is promoted through cultural norms and a centuries-old ethical code by which all Pashtuns abide. Accordng to scholar, Palwasha Kakar, "these tribal law codes are called Pashtunwali, and they are widely practiced as a component of customary law, especially in rural Pashtun majority areas." The context of Afghanistan’s customary and tribal law is based on where adjudication takes place. Since there is no formalized legal law there is only a vague sense of precedence.  In the legislation of customary law, community councils and leaders draw from many different legal systems, such as local customs, tribal laws, Islamic law, and state law (Kakar). Often, community leaders come to a decision that is most acceptable to the mood of the community at a given time. Therefore, it is through publicly enacting norms that fulfill the precepts of Pashtunwali, such as honor, hospitality, gender boundaries, and the institution of jirga, that Pashtuns maintain a specific social order and furthermore sustain their religious-ethnic identity.

Moreover, there seem to be mandates in the Pashtunwali which require members of tribes to exact revenge for a wrongdoing. This kinship explains much of what is happening in the conflict in Afghanistan, and also explains why the Taliban are reluctant to evict Osama bin Laden, who has allegedly asked them to provide refuge from the US military.

Much of the Taliban propaganda is constructed upon the widely-perceived corruption of the Afghan government, and the lack of basic services for Afghans. The Taliban also uses the rural populations distrust for cities to promulgate their agenda. It is for this reason that support for the Taliban is comparably very high in rural areas and virtually nonexistent among urban Afghans. The progress of the Taliban insurgency is driven by the exploitation of the Pashtuns and the Pashtunwali. Understanding local traditions and the Pashtunwali will make it easier for foreign actors to become guests rather than enemies, and consequently, gain protection rather than hostility. 

Understanding customary laws and their relationship to Islam is also critical in understanding the conflict and Taliban propaganda. Pashtunwali’s relationship with Islam has been a complicated one. Although most Pashtuns are Sunni Muslims, the Pashtun’s tribal code is the ultimate authority (Kakar). Second in allegiance is Islamic law. For the Pashtuns there is no contradiction between being a Pashtun, practicing Pashtunwali, and being a Muslim and adhering to Islamic law. Religious scholars often see conflicts between Pashtun customs and Islamic law, but to the Pashtun majority, Pashtunwali is not seen as an entity independent from Islamic law. According to author Oliver Roy, even though the Islamic law and Pashtunwali overlap, they are seen as serving different purposes. “The Islamic law represents God’s Will for humanity on earth and is practiced because it is a moral code whereas Pashtunwali is seen as a matter of honor.”  

Rural Pashtun villages often provide a haven for Taliban insurgents, which then allows them to strike at whim. Lieutenant Colonel Jonathan Hawkins from the Australian Army expresses that any type of insurgent requires ‘will’- the will to succeed versus the will to resist. Pashtunwali is the cultural cement that assists in maintaining Taliban motivation. “The insurgent does not need to win, he or she only needs not to lose.”