AfghanistanCustomary law in Afghanistan needs to be
understood in the context of the semi-autonomous
segregated societies that have made up the Afghan
landscape. These are self-defined by ethnicity or
geographical location/boundaries. As the practice
of customary law can be an identifying marker of a
geographical group or ethnicity, legislation in the
case of Afghan customary law needs to be under-
stood outside the more common state-bound usage.
Legislation occurs where adjudication takes place
by the person who judges or arbitrates. Since there
are no written codified laws in Afghan customary
legal contexts and there is only a vague sense of
precedence, legislation is the enactment of laws that
are neither codified nor part of a corpus of state or
regional laws. Rather, village councils (jirgaor
shùra) and leaders draw upon a variety of legal sys-
tems including local customs, tribal laws, Islamic
law (Sharì≠a), and state laws. Village leaders are
interested in reaching a decision which is most
acceptable to the mood of the community at the
time the matter under arbitration occurred, and
which will be in the best interests of the community
as a whole. The village community is, therefore,
able to maintain a specific social order and reli-
gious-ethnic identity through village members
enacting the norms of their customary law codes. In
some cases, ethnic/geographical identity is inter-
twined with religious identity, hardly distinct from
it, so that practicing customary law is the same as
practicing Islamic law. Women are legislators of
Afghan customary law in that they arbitrate like
Afghan men both at the village level (though infre-
quently) and at the extended family level. There are
only rare exceptional cases where women village
leaders are members of the men’s village councils.
As documented before the Soviet invasion,
Afghan women, especially in sedentary and semi-
sedentary societies, have their own sphere of leg-
islative jurisdiction. Despite separate spheres, men
have control over decisions affecting greater num-
bers of people and over allocations of larger
resources, maintaining disparity of power distribu-
tion. Men and women in this kind of society inhabit
separate worlds, yet together they contribute to the
sustenance of the whole community. Anthropolo-
gists such as Audrey Shalinsky or Nancy Lindis-
Law: Customary
farne (formerly Tapper) search for women’s authority
or lack thereof by focusing on the boundaries in
Afghan society that demarcated the public and pri-
vate spheres. Through this lens men have control
of the public sphere, where the “real” power is
located, and women have control/authority over
limited parts of the private sphere, with at best, the
“soft” power of persuasion to influence men’s deci-
sions. In searching for women’s power in men’s
public spheres, a few exceptional cases of female
leaders can be found, for example, Nazo Anna
(d. ca. 1715), the legendary “Mother of Afghan
Nationalism,” or Zarghona Anna (d. ca. 1772),
who maintained governance in the capital of the
early Afghan confederacy, while her son A™mad
Shàh was away on military expeditions. However,
by fine-tuning the perspective of where women’s
spaces are located, a very different picture of every-
day women’s authority and power in customary
law practices can be revealed.
By looking at both gendered boundaries and pri-
vate/public space boundaries through their homo-
social organization, a new light can be shed on the
power and authority women possess, especially in
the sedentary and semi-sedentary societies of
Afghanistan. “Homosocial” implies that men and
women work and socialize almost exclusively with
the same gender. However, the boundaries are
porous and overlap where youth and elderly cross,
and in certain circumstances such as celebrations or
work environments.
In Afghan women’s spaces, women gain author-
ity through social networks, honorable reputation,
seniority, and control of familial resources. Women
who achieve authority and become village and fam-
ily leaders arbitrate conflicts ranging from theft to
stopping a revenge cycle (badal). In the case of the
customary law code of the Pashtuns, Pashtunwali,
under the rule of nanawati (literally, to enter into
the security of a house) women leaders go to the
houses of the feuding families and arbitrate a way
for the conflict to stop, which the host must accept,
especially if the leader who enters the house is from
the enemy’s family. These female leaders are at the
top of their social hierarchies in the village or fam-
ily and do not legislate through formal councils as
men at the village level do. While it may seem that
decisions are made unilaterally by the female leader,
they are preceded by levels of informal consultation