Abstract

Located at the intersection of four regions, the Middle East, East Asia, Central Asia, and South Asia, Afghanistan is a country whose legal history is sure to be diverse and exciting at the confluence of multiple legal currents. In the book Afghanistan Rising: Islamic Law and Statecraft between the Ottoman and British Empires, Faiz Ahmed shows how Afghanistan could be regarded as a pivot for Islamic intellectual currents from the late nineteenth century onward, especially between the Ottoman Empire and South Asia. Afghanistan Rising makes us aware of our own assumptions of the study of Islamic law that has been artificially carved out during the rise of area studies, including Islamic studies. Ahmed provides a good paradigm for a legal history of a country that was attentive to foreign influences without being overwhelmed by them. While pan-Islamism is often portrayed as a defensive ideology that developed in the closing decades of the nineteenth century in reaction to high colonialism, the plotting of Afghanistan's juridical Pan-Islam in Ahmed's book is a robust and powerful maneuver out of this well-trodden path, as the country escaped being “landlocked” mainly by cultivating regional connections in law.

Afghanistan Rising: Islamic Law and Statecraft between the Ottoman and British Empires by Faiz Ahmed is an exemplary legal history. By focusing on the laws of Afghanistan, Ahmed examines on a basic unit of historical analysis, the nation-state, which has unfairly gone out of style among historians especially of Asia and the Islamic world, preoccupied as we are with exploring issues in the context of global history from the outset. Charting a new path, the transnational dimensions of Ahmed's book are provided by a prototypically national question, What are the historical roots of Afghanistan's independence as a sovereign state and constitutional monarchy?1 The pointed topicality of the book, focused as it is on Islamic law in Afghanistan, easily lends itself to presentist historical narrative, but Ahmed produces a riveting, unexpected history instead that is not aligned with standard narratives that we are more familiar with. By capturing the richness and urgency of the development of Islamic law in Afghanistan, Ahmed provides us with a poignant story of a dynamic Muslim-majority country not yet overwhelmed by colonial interests, on the eve of it being overrun by a surfeit of neocolonial jurisdictions.

Located at the intersection of four regions, the Middle East, East Asia, Central Asia and South Asia, Afghanistan's legal history is sure to be diverse and exciting at the confluence of multiple legal currents. The book shows how Afghanistan could be regarded as a pivot for Islamic intellectual currents from the late nineteenth century onward, especially between the Ottoman Empire and South Asia. In this way, Afghanistan Rising makes us aware of our own assumptions of the study of Islamic law that have been artificially carved out during the rise of area studies, including Islamic studies, over the past seventy years. The legal history of Afghanistan brims with originality, and is markedly different from other parts of the Islamic world. Because Ahmed's book effectively demonstrates how complex Afghanistan was, as a “conduit for dialogues and debates between Muslim sovereigns, scholars, and administrators from the Ottoman Empire to British India” (13). Dealing with the challenges of domestic governance, resisting European imperialism, and navigating inter-Muslim political rivalries alike, it provides a blueprint for research on different parts of the Islamic world.

Unlike most Muslim countries in the late nineteenth century, Afghanistan could develop its own legal system although its status as a semiautonomous British protectorate meant that it could not enact foreign policy without British approval (with the intention of keeping Russia out) and had an army subsidized by the British government in India. This predicament was precisely why Afghanistan has not been sufficiently explored by scholars until recently, relegated to being a “buffer state par excellence” as Ahmed puts it, marked in historiography as a place of perennial isolation and conflict, existing for others and never on their own terms primarily because the region was the main battleground for the Great Game between Britain and Russia, and like any long drawn-out game, scores were constantly tabulated without any clear winner (6). Ahmed's book is therefore very much welcome along with recent books by Robert Crews and Nile Green, who also focused on the people of Afghanistan themselves.2 Ahmed's focus is law and legal institutions specifically, and here we do not see any estrangement and isolation that the history of Afghanistan is often associated with.

As a legal historian of the Indian Ocean and Southeast Asia where diasporas abound, I appreciate that the book provided me with a view of a complex global history of people who actually remained where they were for the most part. Certainly, there is value in examining the legal history of one nation-state to see how the ruling elite devised laws and built its legal infrastructure from the ground up. Ahmed's book provides a good paradigm for a legal history of a country that was attentive to foreign influences without being overwhelmed by them. I am reminded of another layered history of an attempt to undermine another uncolonized state's territorial jurisdiction by historian Thongchai Winichakul, who wrote Siam Mapped: A History of the Geobody of a Nation, a field-changing book that focuses on a territory that was also hemmed in by European colonies, in this case British Burma to the west, Malaya to the south under varying degrees of British rule, and French Indochina to the east.3 On the surface, Siam (now Thailand) became no less a colony than, for example, Malaya, with its patchwork of uneven territorial autonomy along its long borders. Like Siam, Afghanistan too experienced specific knowledge inputs from various sources it courted, wove them together, and came up with a remarkable legal system of its own making through what Ahmed calls “juridical pan-Islam” (33–34, 275, 277).

While Pan-Islamism is often portrayed as a defensive ideology that developed in the closing decades of the nineteenth century in reaction to high colonialism, the plotting of Afghanistan's juridical Pan-Islam in Ahmed's book is a robust and powerful maneuver out of this well-trodden path, as the country escaped being “landlocked” mainly by cultivating regional connections in law. Yet, the specific phenomenon of “juridical pan-Islam” could only come about from the nineteenth century onward. Historically, various legal streams have been running through Afghanistan over several centuries. The prefix pan- in this case applies to different territories and groups of Muslims whose identities hardened by the early twentieth century due to several factors. Before the nineteenth century, Islamic law used to be tied to persons and not territory per se. Over a few decades, Islamic law practiced in different ways by diverse groups of people globally became something remarkable to be addressed under the rubric of “transnational” even if under same colonial ruler, just as juridical Islam became juridical Pan-Islam. The difference is that colonial authorities' attitudes toward Islamic law tended more toward mutation than production. Juridical Pan-Islam in Afghanistan, by contrast, was characterized by resourcefulness and creativity, according to Ahmed. It is not an exaggeration to say that Muslims across the world abided by a few core concepts mixed with slight inflections here and there, heavily supplemented by local “customary law” for lack of a better term, that predated Islam and continued to evolve afterward.

Although Ahmed focuses on the territory known today as the nation-state of Afghanistan, the terrain of its legal history is global, with archival records from several countries and in many languages. While Islamic law's mobility within Afghanistan was determined by the people in Afghanistan themselves, the many historical actors—Muslim scholars, jurists, administrators, and other professionals from British India and the Ottoman Empire who worked with the Afghan Muhammadzai emirs, namely, ‘Abd al-Rahman Khan, Habib Allah Khan, and Aman Allah Khan—made it a truly international affair. As the site of an international legal history, Afghanistan comes close to yet another polity that held its own in the late nineteenth century against encroaching colonialism, that is, the state of Johor on the Malay Peninsula, which is now part of the nation-state of Malaysia, the subject of Iza Hussin's book The Politics of Islamic Law: Local Elites, Colonial Authority, and the Making of the Muslim State. Her case study of the Malayan state of Johor is a remarkable example of trans-madhab history where the Ottoman Mecelle (Hanafi-based) was imported by the Johor ruling elite to be the basis of Islamic law in the state, which has a Shafi'i majority.4 By demonstrating how the layering of multiple systems of law constitutes the creation of an entirely new legal system rather that an aggregation of separate strands, her work speaks directly to the case of Afghanistan as well. Both political entities emerged at the same time, and both decidedly did not absorb laws and legal models they encountered but rather consciously and skillfully emulated them.

Through the ages, Islamic law remains notoriously an unruly and capacious concept. For political and legal elites throughout the world, its allure lies in its malleability and expansiveness. Did this conception change in Afghanistan from the nineteenth century onward? The legal history of Afghanistan is special in that it does not fit the more common trajectories of Islamic law in the modern period. In most places, including in neighboring British India, Islamic law was administered under the umbrella of legal pluralism. Even in the Muslim-ruled Ottoman Empire, this became the operative condition of law applied to diverse populations. Within European empires, it was often more akin to a regime of exceptions for Muslims with regard to polygamy and inheritance by female descendants. In the Netherlands Indies, each group in the vast archipelago had its own combination of Islamic law and customary law (adat law), a form of hyperlegal pluralism imposed by Dutch authorities. Jurisdictional fragmentation along lines of territory and religion, in other words, was the order of the day from the nineteenth century onward. It should not come as a surprise that different sets of law under legal pluralism did not add up to a whole, primarily due to many factors such as the identities of interest groups lobbying for power, which resulted in the marginalization of certain societies from the legal framework at any point in time.5 Although Ahmed rightly points out that “tribal and customary law” has been the focus of study thus far, his book tells the story of state's development of Islamic law that is bound to exclude certain elements, and lineages (13). It is a challenge to sustain legal diversity even when one wants to. Especially outside of Kabul, Ahmed writes, “longstanding social realities of tribal sovereignty, fiercely defended local autonomy, and the authority of political rulers on the ground” (249). Social histories of such interest groups involved in the development of law in Afghanistan could flesh out priorities, although this admittedly is the subject of a different book(s). The innovative premise of juridical Pan-Islam notwithstanding, the most powerful valence in state-sponsored Islamic law is legitimacy and not rigor of interpretation.

Although Ahmed moves away from the more familiar framework of large geopolitical rivalries by focusing on Afghanistan on the ground, there is no denying that the recalibration of legal authority was spurred by encroaching European colonialism. While the first ruler, ‘Abd al-Rahman Khan, ostensibly used Islamic law to unite territories to become Afghanistan, it was also an effective way for him and his successors to stave off potential colonial intervention within the context of the Great Game. In this way, European colonialism had a long reach into places not formally within its grip. Afghanistan had no choice but to be strong, stable, and unified. The process of codification in Afghanistan could be taken as a manifestation of the colonial preoccupation with formal law, which even seeped into areas not formally colonized. Influenced by European legal systems, it is only in the modern period that uniform legal codes of Islamic law aided by the process of institutionalization were deployed as a way to firm up territorial jurisdiction, and in the process state integrity too. As Julia Stephens recently demonstrates in her book, there was creeping “rational universalism” championed by British authorities throughout neighboring India.6 Juridical Pan-Islam in Afghanistan is part of this zeitgeist rather than outside of it. This also means that Afghanistan is very much influenced by vastly different Muslim and non-Muslim conceptions of Islamic law.

Nonetheless, Afghanistan is, as Ahmed reminds us, the first Muslim-majority country to gain independence, to codify its own laws, and to ratify a constitution after the fall of the Ottoman Empire. The apex of Ahmed's narrative is the constitution of Afghanistan in 1923, “one of the twentieth century's first projects of Islamic state making,” a collaborative effort by diverse groups, namely, Deobandi ulema, courtiers, Young Afghans, and Pathan notables, as well as Ottoman legal advisers who remade Islamic law in Afghanistan according to their collective vision (28). This was clearly a moment of rupture, and the resulting constitution, like many constitutions, took on the air of presumed fixity. Law is a weapon, often wielded to stamp out rivals; this phenomenon is succinctly termed lawfare by John Comaroff.8 The “Iron Emir” ‘Abd al-Rahman Khan used state-sponsored Islamic legal codes and courts to shore up his sovereignty to centralize control over heterogenous patchwork of urban, rural, and nomadic populations of the territory he asserted his authority over in the closing decades of the nineteenth century. The emirs' consolidation efforts were fueled by a desire for the society of a collectively imagined past. In fact, the nationalist core at the heart of Afghanistan in the twentieth century was no less strong than elsewhere in the global South during the past century. Works that focus on law tell a story how violence was deployed in an administrative and political mode rather than brute force. Modern legal institutions' robust power lay in its ability to silence competing perspectives and impose a sense of legitimacy buttressed by policing and enforcement. A deeper investigation of the constitution's jurisdiction, which is beyond the temporal scope of the book, could tell us more about this lawfare.

Yet another way Afghanistan is an exceptional place is in terms of its geography. The history of Afghanistan is consistently plagued by an acute lack of revenue. Historically, the country had always tended to depend on the taxation of trade rather than agricultural production for its revenue, the loss of much of this trade due to Russian and British policies at the border not only directly impoverished Afghanistan's cities but it also eventually meant that Afghan governments have never been able to raise enough domestic revenue to cover their basic needs. How was Islamic law marshaled against this harsh backdrop of lack of basic sustenance? The legal infrastructure was developed in tandem with other forms of infrastructure such as urban transportation, and educational, military, and agricultural infrastructures, which Ahmed explores in the last chapter. Different forms of state infrastructure rebound against legal infrastructure in specific ways and therefore significantly shape it. Women's education, for example, affected legal status of women as Ahmed mentions, as it went in hand with intense Islamic reform during the time of Aman Allah. Beyond this more familiar narrative, how did legal infrastructure in Afghanistan do some of the symbolic and material work necessary to create new, visible symbols of shared public goods in terms of Muslim endowments such as waqfs, a prominent feature of Ottoman legal history.

Finally, the book tells a deeply cosmopolitan story centered around the city of Kabul. Ahmed uses the term cosmopolitan several times throughout the book, a description that his book convincingly demonstrates. In his seminal essay, “Grieving Cosmopolitanism in Middle East Studies,” Will Hanley criticized scholars' use of the term “as a tag, a reflexive, generic piece of shorthand that promises to draw together and organize scholarly interventions when in fact it camouflages productive differences.”9 Conventionally, scholars of the Middle East used the term but it is usually elitist in formulation and content, laced with grief, and privileges formal labels over content, Hanley rightly criticizes. Kabul in the early twentieth-century was genuinely cosmopolitan in that it was ethnically diverse, home to Pashtuns, Tajiks, Hazaras, Uzbeks, and Turkmens who were for most of history, autonomous entities concentrated in different parts of the present-day nation-state of Afghanistan. The entity known as Afghanistan resembles a regional construct than a national one for most of its history, perhaps coming closer to an empire in its diversity unified by juridical Pan-Islam.

Notes

1.

Ahmed, Afghanistan Rising, 5. Hereafter cited in the text.

4.

Hussin, Politics of Islamic Law, 149–206.

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