Afghan Legal History


Familiarity with Afghanistan’s legal history helps to identify similarities and parallels between current systems and institutions, and those of the past. More in-depth study helps to understand what practices worked well in the past, which institutions were functional, and why. This provides a starting point of inquiry to explore what lessons can be applied to current reforms.

The references listed below are divided according to their focus upon the history of Afghanistan’s legal traditions: customary law, Islamic law, and state law. The first subsection lists articles that discuss one or more of these traditions. Each subsection thereafter focuses upon one tradition.

Many articles do not fit neatly into categories of history versus contemporary issues. Many articles that discuss current reforms also include discussions of Afghanistan’s legal history. Articles in this section put more focus upon history. Articles focusing more upon current reforms are listed in sections on constitutional law, state judiciary, informal dispute resolution (sections 4, 5, and 6 of the bibliography, respectively).

3.1 Afghan Legal History, in General

3.2 Customary Law in Afghanistan

3.3 Islamic Law in Afghanistan

3.4 Afghan State Law

Afghan Legal History, in General

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Faiz Ahmed, Shari’a, Custom, and Statutory Law: Comparing State Approaches to Islamic Jurisprudence, Tribal Autonomy, and Legal Development in Afghanistan and Pakistan, Global Jurist (2007), available at

Thomas Barfield, Afghan Customary Law and Its Relationship to Formal Justice Institutions,

Nafay Choudhury, Reconceptualizing Legal Pluralism in Afghanistan, 2010 Windsor Rev. Legal & Soc. Issues 21 (2010).

Bruce Etling, Legal Authorities in the Afghan Legal System (1964‐1979), (Harv. L. Sch. 2003), available at

Esther Meininghaus, Legal Pluralism in Afghanistan, Amu Darya Series Paper No. 8 (U. Bonn 2007), available at

Senzil Nawid, The State, the Clergy, and British Imperial Policy in Afghanistan during the 19th and Early 20th Centuries, 29 Int. J. Middle E. Stud. 581 (1997).

Amin Tarzi, Historical Relationship between State and Non-State Judicial Sectors in Afghanistan, (United States Institute of Peace 2006), available at

M. G. Weinbaum, Legal Elites in Afghan Society, 12 Int. J. Middle East Stud. 39 (1980).

Customary Law in Afghanistan

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Thomas J. Barfield, Culture and Custom in Nation-Building: Law in Afghanistan, 60 Me. L. Rev. 347 (2008).

Thomas J. Barfield, On Local Justice and Culture in Post-Taliban Afghanistan, 17 Conn. J. Int’l L. 439 (2002).

Benjamin Buchholz, Thoughts on Afghanistan’s Loya Jirga: A Myth?, 104 Asienkunde 23 (2007), available at

Checchi and Co. Consulting, Inc., Field Study of Informal and Customary Justice in Afghanistan (2005), available at

M. Jamil Hanifi, Editing the Past: Colonial Production of Hegemony Through the ‘Loya Jerga’ in Afghanistan, 37 Iranian Stud. 295 (2004), available at

International Legal Foundation, The Customary Laws of Afghanistan (2004), available at

Palwasha Kakar, Tribal Law of Pashtunwali and Women’s Legislative Authority, (Harv. L. Sch., 2003), available at

Lutz Rzehak, Doing Pashto: Pashtunwali as the ideal of honourable behavior and tribal life among the Pashtuns (Afghanistan Analysts Network 2011), available at

Susanne Schmeidl and Masood Karokhail, The Role of Non-State Actors in ‘Community-Based Policing’ – An Exploration of the Arbakai (Tribal Police) in South-Eastern Afghanistan, 30 Contemporary Security Pol’y 318 (2009), available at

Mohammed Osman Tariq, Tribal Security System (Arbakai) in Southeast Afghanistan, Crisis States Research Centre Occasional Paper no. 7 (2008), available at

Ali Wardak, Jirga: Power and Traditional Conflict Resolution in Afghanistan, in Law After Ground Zero (John Strawson, ed., Cavendish 2002) (2004), available at

Islamic Law in Afghanistan

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Hafizullah Emadi, The End of Taqiyya: Reaffirming the Religious Identity of Ismailis in Shughnan, Badakhshan – Political Implications for Afghanistan, 34 Middle Eastern Stud. 103 (1998), available at

Ashraf Ghani, Disputes in a Court of Sharia, Kunar Valley, Afghanistan, 1885-1890, 15 Int’l. J. Middle East Stud. 353 (1983).

Martin Lau, Islamic law and the Afghan legal system, in State Reconstruction and International Engagement in Afghanistan (2003), available at

Kristin Mendoza, Islam and Islamism in Afghanistan (2003), available at

Ahmad Indrees Rahmani, The Role of Religious Institutions in Community Governance Affairs: How are Communities Governed Beyond the District Level? (Central European University 2006), available at

Nadjma Yassari and Mohammad Hamid Saboory, Sharia and National Law in Afghanistan, in Sharia Incorporated: A Comparative Overview of the Legal Systems of Twelve Muslim Countries in Past and Present (Jan Michiel Otto ed., 2010), available at

Afghan State Law

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Livingston Armytage, Rebuilding Judicial Competence After the Generation of War, 67 Heidelberg J. of Int’l L. 185 (2007), available at

Sulṫān Muḣammad Khān, The Constitution and Laws of Afghanistan (Murray 1900), available at
A study of Afghan law, in 1900, compared to laws of European countries at that time.

Katherine McCullough, Out With the Old and In With the New: The Long Struggle for Judicial Reform in Afghanistan, 19 Geo. J. Legal Ethics 821 (2006).

Barnett R. Rubin, Lineages of the State of Afghanistan, 28 Asian Survey 1188 (1988).

Zoe Bernadette Sherman, Afghanistan’s Constitutions – A Comparative Study and Their Implications for Afghan Democratic Development (2006), available at

Amin Tarzi, Historical Lessons on Rebuilding Afghanistan’s Judicial System, in Petersberg Papers on Afghanistan (Danspeckgruber ed., 2009), available at

J. Alexander Thier, Reestablishing the Judicial System in Afghanistan (2004), available at

Robert F. Williams, Legal Education in Afghanistan Prior to the Soviet Occupation, 6 Suffolk Transnat’l L.J. 247 (1981-1982).