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 inLa guerre par le droit. Les tribunaux Taliban en Afghanistan(Paris: CNRS Editions, 2021), currently in translation.

阿富汗人的根本法律不确定性

这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.

的确，当美国于2001年在阿富汗介入时，阿富汗社会已经忍受了23年的内战，这导致了法律纠纷的爆炸。1978年共产党政变引发的起义引发了与武装冲突一起在法律领域进行的革命。法律和司法成为共产党政府与起义之间的斗争的股份，同时也在精英人士（部落著名人物，大学毕业生和宗教文书）之间的竞争中，谁来规范社会关系。虽然阿富汗国家在20世纪逐渐世俗化了司法系统，但到1980年代末，圣战者的胜利赋予了宗教学者（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.

美国及其盟国strug复活gle 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这Rule of Law in Afghanistan: Missing in Inaction，ed。惠特·梅森（Whit Mason）（剑桥大学出版社，2011年），第266-298页。影响了关键机构的任命，3例如，在2006年，几家西部大使馆迫使卡尔扎伊总统驳回了包括其总统在内的最高法院最保守的成员。Astri Suhrke，When More Is Less: The International Project in Afghanistan(伦敦:赫斯特,2011),197。invented ad hoc “traditional” councils, and interfered in court cases.4例如，《 evaw法律》的通过以及围绕其执法围绕的案件。Torunn Wimpelmann，这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.

另一方面，西方军队从美国军方开始系统地规避阿富汗法律。在针对基地组织和塔利班进行行动，包括一场有针对性的杀戮运动，增加了当地竞争，他们将自己免除了任何阿富汗法律框架。此外，西方军队成立了所谓的“习惯”或“传统”理事会，使判决相互冲突。作为联合国在阿富汗（UNAMA）官员的援助任务，在2010年，在Paktya省告诉我，“有四种类型jirgathat each deal with private conflicts: those organized by USAID, by the US Special Forces unit, by the provincial governor, and the districtshura[or council] associated with the central government. Per the Constitution, districtshura和村庄shurashould have been set up everywhere, but this has never been done systematically. Each type of council follows its own logic. Creatingshuramakes it easier to control local actors and local interlocutors and bypass institutions set up by others.” Given their uncertain legal status, these, the吉尔加斯andshuras，，，，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,一次一个部落：在阿富汗成功的战略(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 Policy17，，，，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.

这Taliban court system

塔利班在2001年被驱逐出权力，在巴基斯坦的支持下，在乡村逐个乡村逐渐重建了自己。该运动声称，外国入侵被迫流放的合法政权的地幔。这使其能够通过将西方部队描绘成占领者来动员人口。尽管他们的资源有限和必须秘密运营的限制，但塔利班在该国大部分地区建立了法院。尽管进行了战争，但他们设定了人们在地方一级获得法律裁决的机制。然而，阻碍了塔利班法官的认可是几种动态：军事行动，法官对战士的依赖以及一方面的军事必须保持行动的矛盾，另一方面是客观性的出现，这一矛盾的是法官必须培养以保持可信。然而，法官将法官的融合纳入官僚制度，招募在等级功能的文书人员以及制定标准程序的建立使塔利班也能够在战时条件下生产出相对可预测的法院系统。首先，该运动将法官纳入了一个集中的司法组织，该组织受到1990年代塔利班政权的机构建筑的启发。旋转和监视系统旨在确保法官的良好实践及其公正性在当地问题上。

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.7要进一步阅读南亚的Deobandi神职人员及其周围的组织网络，请参见Barbara Metcalf，Islamic Revival in British India: Deoband, 1860–1900(Princeton, NJ: Princeton University Press, 1982); Muhammad Qasim Zaman,当代伊斯兰教中的乌拉马：变革的保管人(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, theUlemasshared a range of theological and legal skills, a bureaucratichabitus，，，，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.

这Taliban judicial system thus relied on the dual roles of its judges: They acted both as magistrates in the legal field and asUlemasin the religious field. The granting ofulemastatus 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 asUlemas，，，，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.

这production of a social order through courts

塔利班司法系统参与了三个层次的社会秩序的生产：武装运动的其他分支的结构，法律的合法化以及对社会项目的实施。首先，塔利班司法系统是更广泛的政府的一部分，该政府纳入了国家职能的正式原则。在这个秘密政府中，塔利班的法官是基于政治，军事和司法职能的差异化的交叉认可和合法化制度的一部分。塔利班领导人雇用法官在运动中执行层次结构，以维持集中权力。但是，没有专门的警察部队，法官依靠战斗人员执行裁决。因此，法官有效地抑制指挥官的能力取决于他们对指挥链的尊重。尽管下属指挥官被逐步强迫加入，但最重要的指挥官有能力抵抗，迫使该运动的政治领导层进行谈判安排。

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.

最后,塔利班司法系统了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 theUlemas。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.

这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,革命无限：阿富汗，1979年至今，，，，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).此外，他们的管理方式现在将产生截然不同的后果，因为在国际干预二十年后，社会发生了巨大变化，因此更加如此。

自从他们接手以来，塔利班重新建立了伊斯兰酋长国的许多实践和机构。这用祷告和指导部代替妇女事工，并促进美德和预防副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.

这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。