As an attorney, I was curious about Afghanistan’s legal system and it is noteworthy (at least to my mind) that I cannot recall anyone or anything ever mentioning the legal history, legal environment, or legal “culture” of Afghanistan before arriving in country on Sept. 11, 2004.
I’ll make some generalizations and those are, like in most cases, good for only so far as they go. I spent a good bit of time on the eastern side of Afghanistan from as far north as Jalalabad, and as far south as Qandahar, and in between (but never in the major cities to the west, such as Herat, or up north to Mazar-e Sharif). My time also included a lot of interaction with Afghans, including politicians, local village elders, police chiefs, border patrol, and even soldiers and policemen. Some things became quickly apparent and it wasn’t long before I realized that a lot of the conflict between Afghans and US counterparts stemmed from issues surrounding “corruption.” Now, I put that in quotes decidedly and it bears some explaining.
Afghan culture has the family at its apex; this includes the extended family. The Afghans are, generally, so poor that it would make most Americans blanch to see it up close. We have nothing in the US that even bears a close relation (I have heard parts of Appalachia are ‘backwards’ and very poor, but I feel fairly confident in my assessment that there is no “U.S. poor” that stacks up to even typical, daily Afghan life). A friend of mine who had grown up with missionary parents in some of the more under-served parts of Africa was sitting around with a few of us shooting the shit and one of the guys said, “Oh, you must be used to this third world existence” knowing his background. My friend, nicknamed ‘Bum’ said, “What? Third world? Dude, this place is fourth world. Africa is nice compared to here.” I could go on and on with anecdotes, but I think the most telling thing I ever heard was that the life-expectancy in Afghanistan before our invasion was something like 37. Within a year of the US being there, the life expectancy for the whole country had gone up into the 40’s. One final point, I was in Paktika province at one point helping to train some of the local police. In frustration, I once joked with my sister that I was in the “dumbest place on Earth.” Afghanistan has the highest rate of illiteracy in the world. Paktika is the worst province in Afghanistan for that same metric. Hence my joke.
But back to the point of the importance of family. The extended family includes mothers and fathers, brothers and sisters, as well as all the children. It is not uncommon for an Afghan compound (walled and usually containing three or more small dwellings) to have 30-40 people in it. It is simply how they live. And there may be one or two male breadwinners per compound. A family of 4 (when I was there) would subsist on about 60-90 rupees a month (about $10-15 US). And I was in an area that was considered relatively “well-off.” The family unit then extended out to the tribe, which is really nothing more than a collection of ethnically linked families, and then out again to the village (just an extended version of the tribe). If a male breadwinner were to get a job, particularly one funded by the US to the Afghan government, it was not only expected, but required, that whoever had that job would (a) do everything they could to get another male of their family a job. We call this nepotism and it is culturally frowned upon here. We believe in meritocracy. Even some of the best Afghans I worked with, who would agree with such a proposition, were still coerced/required to try to hire Uncle Ed, the Moron, or they would not be able to survive in their village. It was also expected that after getting Uncle Ed the job, either the hiring party (or Uncle Ed), was going to do everything possible to funnel money, resources, funds, you name it, by hook or by crook, to their (a) family, (b) tribe, (c) village. This included someone who was a judge, policeman, or other high official – and I can think of perhaps one or two exceptions in my entire two year stint there (and of those, I even heard rumors but never had credible evidence to support the claims).
This wasn’t viewed (by Afghans) as anything other than a necessary fact; it is culturally so opposite the US that I would watch the arguments taking place between US and Afghan officials and I could see that this was never going to result in a satisfactory solution for either side. We were enforcing western notions of merit, nepotism, and “corruption” on a society that had no tradition other than that of nepotism and favoritism for relatives. It had very little tradition of anything even resembling a central government. After a while, for my own part, I simply came to accept it and tried to work within what I called “acceptable levels of graft.” I would simply tell Afghans with whom I worked: “Look, I know you’re going to inflate the contract price and skim some of it, do us both a favor: don’t make it bad enough that you’re going to piss off my bosses and don’t screw me on the workmanship. Keep your take to something that isn’t going to force me to start digging into your books, te pohaygeh?” (you understand?) I got on marvelously with most of my Afghan counterparts. They would give me some mock indignation, but I later learned they greatly appreciated my candor. I didn’t act with any overtone of moral superiority; I just dealt with the reality.
Now, against this backdrop, I wanted to contrast the western tradition – and specific British phenomenon – of the “rule of law.” Legal matters in Afghanistan generally were settled at the point of an AK-47. “Blood feuds” between families were very common and part of the culture. If a male of one family were killed by another family, the eldest male of the second family was honor bound to kill a male of the other family. (This was probably why Gandhi – who was from the area – famously said that “an eye for an eye only leaves the whole world blind.”) These intramural wars would go on until they inevitably hurt some innocents, at which point the village elders would step in and hold a shura, a council, and sort the whole mess out. Ultimately, “justice” would be decided after a whoooolllle lot of talking, and ‘fault’ would be apportioned, not with respect to rules of evidence, or even the actual facts, but with consideration toward what was best for the village as a whole, and then one side would be required to pay some remuneration to another in other to clear the whole matter up. This might mean the actual aggrieved party – the victim – would be required to pay off the original belligerent – in order to make ‘peace’ with the village as a whole (yes, I’ve seen this happen). The idea that the code of honor itself (called Pashtunwali) might have some problems, or that settling matters by force isn’t a good idea, was antithetical to Afghan culture. And as a result, no Western-style solution is ever going to work there. Ever. Which brings me back to something my Contracts professor told our 1L class very early on: he read from a letter complaining about how bad lawyers are and how litigious American society was. It went on and on and sounded like an Op Ed piece. Then he read the date – 1807, or something of the kind. Twenty years into our country’s existence and people were already bitching about the lawyers. And then he punctuated it with this: “…If you don’t want to have lawyers settle disputes, then stop poking each other in the eye with sticks!” I thought it was pretty funny and now, in retrospect, I see the wisdom of exactly what he meant. The point at which we abandon the Rule of Law, and our respect for it, is the point at which we return to barbarism and violence to solve disputes. And the moment that happens, we might as well cash it in. The Grand Experiment has failed.
I’ll have my final thoughts on this in another post.