Politics
Page 9
A Crisis of Legitimacy: The Failed Effort to Westernise Afghanistan’s Legal System By Antóin Fletcher, SF Law
Reflecting on two decades of US intervention in Afghanistan, the latest report from the Special Inspector General for Afghanistan Reconstruction (SIGAR) tells a story of how US ignorance of the religious and cultural factors influencing the legal framework of that country significantly undermined efforts to establish a unitary and centralised legal system: “[T]he United States misjudged what would constitute an acceptable justice system from the perspective of many Afghans, which ultimately created an opportunity for the Taliban to exert influence at the local level.” Independent researcher and humanitarian worker Yoshinobu Nagamin has characterised Afghanistan as “a strong society but a weak state.” From a legal perspective, Afghanistan has traditionally been fragmented and decentralised. Customary justice, favouring arbitration over litigation, has long been an integral element of Afghanistan’s legal culture. Ultimately, reforming the Afghan legal system to maximise its compatibility with Western conceptions of the rule of law proved to be short sighted. Afghanistan is a distinctive study, deserving unique observations and conclusions on legitimising forces. That is not to dismiss the validity of Afghan political values or to imply they are primitive in any comparative sense, but to point out an essential distinction, one tragically overlooked by western politicians, militaries and commentators alike. Furthermore, this article does not attempt to offer a definitive or comprehensive overview of the collapse of the western-backed Afghan administration; it is simply a broad outline. The centrality of legitimacy A contributory factor in Kabul’s (For clarity, Kabul here refers to the Afghan State from 2004 to 2021) failure to establish a functional legal system was a lack of legitimacy. Indeed, legitimacy is an essential attribute for effective governance. In his book, Regime Change in Afghanistan: Foreign Intervention and the Politics of Legitimacy, Asia-Pacific affairs scholar Maley asserts that legitimacy is the “most usual basis for a regime’s coercive capacity” and attributes the rapid decline of former empires to a lack of “organised domination.” Among other administrative and coercive methods, the Taliban employed its legal system as a means of building political power and legitimacy on foundations of competent statecraft. In much of Afghanistan, this feat was beyond the central government. I will draw here on the recent work of Dr Niels Terpstra, Assistant Professor of Law, Economics and Government at the University of Utrecht, to discuss legitimacy in both a pragmatic and moral sense. Dr Terpstra briefly defines these terms: “Pragmatic legitimacy is based on the provision of services, protection, or even a willingness to share power, while moral legitimacy is based on ‘narratives of goodness, compatibility with existing norms and moral codes…”
