Power, collapse and resurgence

A full accounting of the Taliban’s rise in Afghanistan would require an in-depth analysis of the country’s internal ethnic, sectarian and historical dynamics; an examination of geopolitical forces that have exerted – and continue to exert – considerable influence in the region; and a comprehensive study exploring how these forces interact.Footnote ⁸ While such an analysis is beyond the scope of this paper, this subsection provides an overview of the Taliban’s ideology, and its rise, fall and resurgence; the inquiry is restricted to post-Soviet-occupation developments, beginning in 1990.Footnote ⁹

The Soviet Union completed its withdrawal from Afghanistan in 1989; however, conflict in the country persisted, albeit in a different form. Given enduring military and financial support from the Soviets, it took another two years – and the collapse of the Soviet Union – for the mujahideen to topple the existing Afghan government.Footnote ¹⁰ But despite their success, groups that previously coalesced around the anti-establishment resistance movement failed to cooperate. As a result, civil war characterized by an “intra-mujahideen struggle” ensued.Footnote ¹¹ As the conflict progressed, competing ethnoreligious factions subjected the country to chaos, corruption and confusion. The result was a population eager for stability and peace, ready to accept the Taliban’s ‘simple and appealing [message]: peace, order, and Islamic law’.Footnote ¹² Of course, the cost of this relative stability was the swift imposition of fundamentalist rules, particularly those subjecting women to severe education and employment restrictions.Footnote ¹³ According to one Afghan official: “My daughters sit in the house and cry to me: We want education. This is heartbreaking, but peace is the first priority for people here. The Taliban must be given credit for accomplishing this.”Footnote ¹⁴

The Taliban took control of Kabul in 1996. By 2000, Afghanistan “was more unified than it had been at any point in the preceding two decades.”Footnote ¹⁵ The country was by no means one cohesive political entity nor were stable institutions in place; however, by comparison to the preceding decades a relative, though brief, peace ensued. To solidify their control, the Taliban pushed for an evolution of their organizational structure from a predominantly militant movement to one capable of effective governance.Footnote ¹⁶ Headed by an Amir, Mullah Muhammad Umar, the country was renamed the Islamic Emirate of Afghanistan in 1997 and its new leadership began the process of institutionalizing their fledgling government. Informal networks ‘connecting the leading figures to the new state structure’ were formed, and various religiously inspired governmental ministries – equivalent to those present in other ILS – were established.Footnote ¹⁷ With time, the efficacy of this structure, with informal, dispersed leadership and centralized authority in Kabul, proved strategically and socially problematic.Footnote ¹⁸ Economic stagnation and increasingly restrictive public policies followed as the Taliban imposed their ‘obscurantist version of sharia law that was a mixture of tribalism, male chauvinism and illiteracy’.Footnote ¹⁹

Despite the desire of many in the organization for formal recognition, as Taliban rule progressed into the late 1990s and early 2000s, key decisions made assimilation into the international community a practical impossibility. Chief among them were the massacre of the Hazaras – a predominantly Shia ethnic minority – and the willingness to safely house Osama Bin Laden and al-Qaeda.Footnote ²⁰ Idiosyncratic interpretations of Islam, and continued violations of the Islamic laws of war, led other ILS to reject formal recognition of the Taliban.Footnote ²¹ With the terrorist attacks of September 11, 2001, and the subsequent U.S. invasion, whatever limited avenue may have existed for a diplomatic way forward was closed.Footnote ²²

U.S. forces swiftly toppled the relatively unpopular, disjointed Taliban regime in November of 2001. But less than two years later, remnants of the organization were again capable of launching attacks against those who officially governed the country. By 2021, the Taliban controlled more territory than they had at any point in the war.Footnote ²³ Though a full-scale analysis of the diplomatic and tactical missteps by both the U.S. and its Afghan partners is outside the scope of this paper, we wish to highlight that ‘the laws that emerged from the post-Taliban state building effort were drafted by foreign advisors … . The wide-ranging legal concepts reflected in those laws sometimes conflicted with local Afghan traditions … [and] the tenets of [shari’a]’.Footnote ²⁴ U.S. and coalition struggles aside, the Taliban’s resilience, and their ability to effectively conduct a protracted military campaign while garnering popular support, should not go unnoticed.Footnote ²⁵ The movement forced the U.S. to the negotiating table on a number of occasions, and U.S. leverage to extract concessions progressively decreased with each successive iteration.Footnote ²⁶ The U.S. withdrew in August of 2021 and the Taliban emerged more powerful and capable of exerting widespread influence.Footnote ²⁷

Afghanistan today

Today, the Taliban again remains in the midst of a slow, largely ineffective transition from a domestic guerilla fighting force to a functional government capable of national administration.Footnote ²⁸ Thus far, leadership has opted for a structural organization reminiscent of previous Taliban rule, and past Afghan constitutional arrangements: centralized leadership guides policy through provincial leadership and down to the local level.Footnote ²⁹ Unlike previous regimes, however, the group’s supreme leader, Haibatullah Akhundzada, ‘retains his tight grip on all decisionmaking’.Footnote ³⁰ While serving to stabilize some of the disorder that followed the August 2021 return to power, that tight grip has also yielded increasingly restrictive social policies and quelled internal dissent, stripping women and girls of many rights they enjoyed before, most notably access to higher education. ‘Haibatullah has repeatedly dismissed input from other Taliban factions, especially more pragmatic, internationally oriented Taliban leaders’.Footnote ³¹

In September 2021, a month after regaining control of the country, the Taliban suspended the Afghan constitution of 2004. Without a stable constitutional order in place, ‘they declared to provisionally implement elements of Afghanistan’s Constitution of 1964 … that are not in conflict with shari’a and the ‘principles of the Islamic Emirate’ … .’Footnote ³² As a former Afghan cabinet minister noted, ‘the Taliban government [i]s “not based on any particular constitution.”’Footnote ³³ With that constitutional void, and nothing more than amorphous guidance that constitutional provisions – and sub-constitutional edicts – be shari’a compliant, the Taliban are free from any legally binding limits on how they choose to govern.

Given their autocratic style of governance, reticence to reduce their beliefs to writing, and oft-conflicting messaging, it is difficult to reduce the Taliban’s religious and political ideology to a fixed point. Granted, the Taliban is clear that the Islamic legal tradition as exposited by the Hanafi jurisprudence – however interpreted – should govern Afghanistan.Footnote ³⁴ Yet, it is God who is the lawgiver and lawmaker. Humans are obliged to discover God’s will for humanity. However, the corpus of the Hanafi jurisprudence is notably diverse. In fact, views of some Hanafi jurists on specific issues may even be contradictory. Thus, ambiguity in application of these rulings to contemporary governance poses considerable challenges. In addition, regardless of the Taliban’s open commitment to the classical Hanafi doctrine, some of their policy decisions depart from these teachings. By way of illustration, though Taliban-enacted laws severely restrict women’s rights, including rights to education and employment, Abu Hanifa – the founder of the Hanafi school – viewed women as active participants in Muslim societies. For instance, according to him, a woman can adjudicate in court cases where she fulfills requirements needed for a witness.Footnote ³⁵

In theory, the group is bound by the guiding tenets of shari’a, but ‘the actual construction of the law is a human activity, and its results represent the law of God as humanly understood. Since the law does not descend from heaven ready-made, it is the human understanding of the law – the human fiqh – that must be normative for society’.Footnote ³⁶ This freedom from legally binding language is likely deliberate. Once a governmental structure is announced, and legally protected individual rights are instantiated via text, a new iteration of the Taliban regime would simultaneously restrict its decision-making power while likely angering internal and external actors.

Though thus far the Taliban has been governing Afghanistan without a formal constitution, the 2022 book by the most influential religious authority in the organization and current Chief Justice of the Taliban’s Supreme Court, Abdul Hakim Haqqani, The Islamic Emirate and its System, constitutes the most significant compilation of philosophy and legal philosophy undergirding Taliban policies.Footnote ³⁷ Endorsed by the Taliban leader Haibatullah Akhundzada – who contributed a brief preface to the book – The Islamic Emirate and its System provides a palpable and credible normative exposition of the revived Taliban state. Although some of the writing is on a theoretical jurisprudential level, the book outlines features of a shari’a-based state and Taliban views of legitimate Islamic governance: duties and responsibilities of the Islamic state’s leader, the role of scholars, armed forces, sources of Islamic legislation, status of custom (urf), education and women’ role and place in Islamic society. In discussing the various aspects of a proper Islamic state, Haqqani relies on Islam’s foundational sources: the Qur’an and sunna, and insights from the Hanafi school of jurisprudence. Shari’a constitutes a complete and final statement on governance and takes precedence over any constitutional efforts. In fact, a constitution is superfluous.Footnote ³⁸

Arguably, as in the context of any ILS, in their efforts to govern Afghanistan, the Taliban need to strike the proper balance between religious and secular law.Footnote ³⁹ This is an endeavor that has been attempted time and time again in Afghanistan. From 1923 forward, each Afghan constitution has sought to express the balance in a different way, shifting from a more secular domestic legal system to a more religious one and back again. The Taliban, by avoiding ratification of a binding document, are unrestricted in their attempt to govern on an ad hoc basis. They are therefore able to send mixed – and often contradictory – messages to differing audiences.Footnote ⁴⁰ In addressing the international community, the Taliban can signal an intent to pursue progressive policies that might allow Afghanistan to eventually be accepted into the broader global order. Yet, at the same time, the Taliban pursue fundamentalist policy domestically, appeasing the more conservative factions of the Afghan population and their own conservative base.Footnote ⁴¹ No matter the message, there are no constitutional limits against which any audience can measure the regime’s adherence to the rule of law. Moreover, there are no constitutionally grounded rules holding the governing regime accountable.

Vagueness in legal drafting is nothing new; indeed, a degree of vagueness is a necessary corollary of legal drafting.Footnote ⁴² After all, in the United States and elsewhere, ‘it is emphatically the province and duty of the judicial department to say what the law is’.Footnote ⁴³ Whether interpretation or specification of legal provisions rests with the judiciary, or other governmental entities, it must rest somewhere. Lack of legal precision can serve as a useful tool in lawmaking at the executive or legislative level, providing room for political compromise, ongoing flexibility, interbranch cooperation and more effective governance.Footnote ⁴⁴ Arguably, in the context of Afghanistan, legal vagueness was a springboard for the country’s longest lasting constitutional scheme in 1931.Footnote ⁴⁵ Alternatively, in some societies and to some extent, vagueness in legal language can be seen as an anti-democratic tool employed to subvert constitutionally mandated separation of powers.Footnote ⁴⁶ In any case, though the drafting process necessarily yields vague language, the general apprehension for written legal commitments is at its apogee with the Taliban.

Rather than govern subject to the strictures of any constitutional language, vague or not, thus far the Taliban have chosen to govern exclusively via unconstrained, sub-constitutional actions.Footnote ⁴⁷ Though in part vague and theoretical, Abdul Hakim Haqqani’s 2022 book seems to be the nonbinding but definitively guiding compendium for governing Afghanistan. Yet, it is narrow in scope and thus does not fully capture the Taliban’s multifaceted ideology comprising Deobandi beliefs, localized Pashtunwali values, and tribal customs.Footnote ⁴⁸ Deobandism itself, while adhering to the Hanafi school of law, was developed through a network of seminaries in India and takes many forms.Footnote ⁴⁹ For example, Islamic scholars from one wing of the movement believe in political involvement with varying degrees of secularism; others renounce political involvement of any kind.Footnote ⁵⁰ Though the internal machinations of the current regime remain opaque and the ideology is inherently difficult to define with precision, there is one point of clarity: if the current style of governance is any indication, the Taliban’s most conservative faction is in control, with little desire to reduce a formal legal structure to writing.Footnote ⁵¹

The role of custom

When considering the evolution of the legal landscape in Afghanistan, it is crucial to highlight the reality that majority of Afghan people – especially those residing in the country’s rural areas – perceive unwritten customary norms as providing a de facto, overarching normative system.Footnote ⁵⁶ Indeed, ‘Islamic law stipulates that everything which does not cross the limits established by God is permitted, and customary norms of behavior often fill in legal lacunae’.Footnote ⁵⁷ Therefore, as long as local custom does not violate shari’a, it is often used in place of or as a supplement to written law.Footnote ⁵⁸ It is against this complex and multilayered backdrop that Afghan constitutional tradition must be contextualized.Footnote ⁵⁹ Indeed, though in any ILS striking the appropriate balance between secular and religious law is a challenge, in Afghanistan the difficulty is exacerbated by a diversity of stakeholders operating amid competing customs and local normativities shaped by racial, cultural, ethnic, regional, tribal and linguistic considerations and sensitivities.Footnote ⁶⁰ Notably, the importance of urf is also addressed in Haqqani’s 2022 book. According to Haqqani, persistent in time, widely accepted customs and practices of people in an Islamic state, if not conflicting with shari’a, should be honored. Haqqani contrasts such genuine Afghan customs with those hailing from the West, which ‘lack validity, and must be abolished’.Footnote ⁶¹ Any attempt to draft a lasting constitution must effectively account for these – and many other – differences.Footnote ⁶²

1923: The birth of Afghan constitutionalism

Afghanistan shook free from its status as a British Protectorate in 1919. Led by King Aman-Allah, with their newfound independence the country rapidly moved to establish a constitutional monarchy and a ‘government by law’.Footnote ⁶³ But just as quickly as it had formed, Afghanistan’s first constitutional monarchy collapsed under the pressure of rebellion.Footnote ⁶⁴ Many attribute this quick rise and fall to King Aman-Allah’s overly progressive Basic Code of 1923, a constitutional structure that struggled to gain acceptance in the country’s prominent ‘tribal society’.Footnote ⁶⁵ But as with most Afghan historical accounts, this narrative oversimplifies the complex internal and external forces that generated the first failed attempt at stable, constitutionally-anchored governance. Internal tribal disputes certainly added stressors to the already difficult task of instantiating a new, independent government, but illiteracy, external British influence, and a host of other complicating factors all played a role in King Aman-Allah’s eventual demise.Footnote ⁶⁶ More importantly in the constitutional analysis, this oversimplified narrative fails to account for ‘the monarch’s resolve that Afghanistan’s constitutional reforms spring from within the Islamic legal and ethical traditions, or the shari’a’.Footnote ⁶⁷

As with the constitutional structure of any ILS, the Basic Code of 1923 sought to strike a balance between religious and secular laws. To be sure, the constitution contained a number of progressive provisions, such as the right to an education for men and women, as well as an unqualified freedom of the press.Footnote ⁶⁸ However, the Basic Code also included fourteen religious provisions, and nine explicit references to Islam and shari’a, despite its relatively short (by modern standards) length of 3092 words. Notably, it provided that ‘[t]he religion of Afghanistan is the sacred religion of Islam’, and required the king to govern in accordance with Islam and the shari’a.Footnote ⁶⁹ Many of these early constitutional features had considerable staying power and have endured through each successive constitutional regime.Footnote ⁷⁰ Interesting examples of such provisions include Articles 2, 4 and 21 of the 1923 Basic Code, all of which deal with the role of Islam and shari’a in Afghanistan’s governance.Footnote ⁷¹

While specific Islamic provisions have survived the last century of Afghan constitutional history, the Basic Code’s most lasting impact came by way of its structural model. ‘[D]escribed as one of the first ‘Islamic state’ projects of the 20th century’,Footnote ⁷² King Aman-Allah’s Afghanistan consisted of a layered bureaucracy, with appointed and elected officials managing decentralized government affairs from the capital, through provinces and down to the local level.Footnote ⁷³ Though the Basic Code incorporated religious language, its structure was reminiscent of Western governments, particularly Great Britain.Footnote ⁷⁴ Most notably, in ‘its perceptive attempt to circumvent the widening gulf between “Islamic” and “secular,”’ the jurists of King Aman-Allah’s Afghanistan ‘pursued their goals by engaging the challenges of modern state building from within the Islamic-Hanafi legal tradition, and not outside it’.Footnote ⁷⁵ In doing so, these jurists worked to find a space in which an ILS could fit in the post-colonial, international landscape while trying to ensure the shari’a occupied a central role in the government and everyday Afghan life.

Despite these early efforts to strike an adequate balance between religiously-infused and secular legal language, the Basic Code proved too progressive, and modernist reforms came too quickly for the country’s religious elite.Footnote ⁷⁶ In a nod to religious conservatives, amendments were adopted in 1925, but these still could not stabilize increasingly tenuous state institutions.Footnote ⁷⁷ Rebellion soon followed, and King Aman-Allah’s vision for Afghanistan never fully materialized.Footnote ⁷⁸ The predominant narratives suppose that the fall of the Basic Code came as a result of a revolt against modernity, but as with most Afghan history, that too is likely overly simplistic. Whether it was progressive ideals or progressive ideals pushed too quickly, King Aman-Allah’s first constitution survived merely six years before being replaced in 1931.Footnote ⁷⁹

1931: A conservative compromise

While the Basic Code of 1923 brought ‘remarkable and significant social and political changes to Afghanistan’, the country was not yet ready for ambitious legal reforms.Footnote ⁸⁰ During the transition to the 1923 to the 1931 constitution – the Fundamental Principles of the Government of Afghanistan – outward-looking modernization gave way to inward-looking conservatism.Footnote ⁸¹ The constitutionally-expressed balance between religious and secular provisions was remarkable in its durability, and came by way of a compromise between ‘modernists, traditional religious leaders (ulema), tribes and the monarchy … . [It] achieve[d] an equilibrium wherein each group gained more from abiding by the constitutional order than from challenging it’.Footnote ⁸² Ultimately, it ushered in three decades of peaceful dispute resolution, as political disagreements were handled through political institutions.Footnote ⁸³

Though it has been described by critics as a ‘do nothing constitution’ and a ‘step backwards’ in Afghan constitutional history, the 1931 constitution was uniquely successful in its longevity.Footnote ⁸⁴ As such, it merits particular attention. To be sure, the constitution was a step toward conservatism. In merely 4,530 words, the constitution contained twenty religious provisions, and seventeen specific references to Islam or shari’a.Footnote ⁸⁵ It also departed from the Basic Code of 1923 in several notable respects. The Hanafi interpretations of Islam were firmly entrenched throughout the newly established government, two supremacy clauses were included, and a repugnancy clause was added to the constitutional text.Footnote ⁸⁶ And while most individual rights were retained, ‘shari’a qualifiers’ now modified equal protection and freedom of the press.Footnote ⁸⁷ According to the new constitutional order, Afghanistan was – first and foremost – an Islamic law state. This reality was welcomed by conservative religious leaders who played a significant role in the 1929 revolt.

At its most basic level, the 1931 constitution retained the basic structure of the layered bureaucracy, with a King at the top, set up by the Basic Code. Appointed and elected officials managed decentralized government affairs from the capital, through provinces, and down to the local level.Footnote ⁸⁸ As with the Basic Code, the more democratic structural provisions proved aspirational early on, and while they were intended to be elected, ‘deputies to the lower house [of parliament] were hand picked by the king just as much as the members of the upper house’.Footnote ⁸⁹ Despite the continued failure of the 1931 constitution to put its democratic ideals into practice, it made a critical, structural change: no organ of government would be above the shari’a. The parliament, the courts, and the King were all subject to the supremacy of Islam and the dictates of the shari’a.Footnote ⁹⁰ In this way, ‘constitutional rights could be acceptable and secure legitimacy, as long as these rights did not impinge upon Islam’.Footnote ⁹¹

The introduction of additional, stronger supremacy, repugnancy, and holy oath clauses is notable in the 1931 constitutional regime. Arguably, ‘had [King Aman-Allah] incorporated strong form Islamic supremacy clauses in his [1923] constitution to provide “insurance” against novel and perceivably “un-Islamic” rights, he may have succeeded in placating the opposition to his constitutional reforms’.Footnote ⁹² More likely, as with all of Afghan history, a fortunate confluence of internal and external factors contributed to the endurance of this constitutional regime. Islamic constitutional symbolism surely matters, and probably served as an important stabilizing force in 20th century Afghanistan, just as it does across contemporary ILS today.Footnote ⁹³ But the implementation, or lack thereof, of constitutional directives played a role as well. Despite the constitutional directive for electoral government, ‘the parliament became a means for keeping the tribal leaders … in Kabul during the months … when they were likely to foment trouble in their regional strongholds’. Though problematic, this kind of sub-constitutional action could, at least in the short term, act to stabilize the central government.

On a more optimistic note, several critical constitutional deferrals may have ‘played a key role in ensuring that the 1931 Constitution promoted ongoing debates of controversial constitutional issues … .’Footnote ⁹⁴ Though in many cases leaving constitutional questions unanswered in a founding document would more naturally act as a destabilizing force, deferring key questions can, and in this case arguably did, encourage disputes to be resolved through non-violent channels.Footnote ⁹⁵ For example, the 1931 constitution qualified several fundamental rights. Fundamental rights were guaranteed, but only insofar as they were in accordance with the shari’a or other applicable law.Footnote ⁹⁶ In both cases, the shari’a or other applicable law would be determined by a separate body post-ratification. And ‘[u]p until the 1950s, the government did not attempt to resolve the deferrals on these questions of rights, arguably because concretizing a particular practice would have created violence’.Footnote ⁹⁷

In the subsequent years, at the sub-constitutional level, competing factions were then able to debate critical issues non-violently, and the constitutional scheme survived.Footnote ⁹⁸ Whether it was the numerical addition of religious provisions that shifted the religious-secular constitutional balance (symbolically or otherwise), the addition of key provisions that appeased more violent constituencies, or constitutional deferrals that promoted continued debate, the 1931 constitution endured for decades. Arguably, each of these factors contributed to the document’s overall success. Throughout the 1950s and 1960s the economy slowly grew, education expanded, and the state accumulated sufficient military power to subdue rebellion – all these socioeconomic factors helped maintain the constitutional order. But no matter the primary cause, thirty-three years later this success continued when – in 1964 –the 1931 constitution became ‘the only constitution in the history of Afghanistan [to be] replaced peacefully’.Footnote ⁹⁹

1964: a liberal revolution

With three decades of relative peace and a stable constitutional order, Afghanistan modernized and government institutions expanded.Footnote ¹⁰⁰ Domestic conflict remained, but with a growing modern, urban and educated population, disputes were resolved without violence. Afghanistan’s first political parties were born, and the growing urban elite continued to push reform through the Liberal Democrat and Nationalist parties throughout the 1950s, though both parties, as compared with Afghan society more broadly, had a decidedly liberal, reformist agenda.Footnote ¹⁰¹ Taking control of the Parliament, these parties used the ‘forum to express “democratic ideas, defend the rights of their constituencies, and supervise the affairs of the state”’.Footnote ¹⁰² Reform bred further reform, and a diverse array of competing ideologies continued to emerge.Footnote ¹⁰³ Soon, this progress outstripped the strictures of the 1931 constitution and another constitution-drafting process was initiated.Footnote ¹⁰⁴

At King Zahir Shah’s direction, the drafting committee was instructed to produce a constitution that would be ‘acceptable to the ulamāʾ, the tribal notables, the emerging intellectuals, and to the liberals’.Footnote ¹⁰⁵ In a country with a multiplicity of competing constituencies, creating a founding document was no easy task. Ultimately, the process yielded Afghanistan’s 1964 constitution, ‘known as “the finest in the Muslim world”’.Footnote ¹⁰⁶ But despite the progressive societal trends, the document retained the Islamic provisions of its predecessors and went further in some areas. Article 64’s repugnancy clause provided that ‘[t]here shall be no law repugnant to the basic principles of Islam’.Footnote ¹⁰⁷ In theory, this provision was a win for the more conservative segments of the Afghan population. But because much of the constitutional language was vague and did not clarify that the ‘basic principles of Islam’ were those of the Hanafi school of jurisprudence, there was significant tension among the different members of the ulamā’ and other conservative leaders.Footnote ¹⁰⁸ Similarly, Article 2 declared Islam as the state religion and partially recognized the Hanafi school. Yet, the courts were to apply the Hanafi fiqh only in cases where no constitutional provision or state law applied.Footnote ¹⁰⁹

The 1964 constitution referenced Islam or shari’a merely seven times and contained half as many religious provisions when compared with its 1931 counterpart, despite the fact that the new constitutional text was twice as long.Footnote ¹¹⁰ Though King Zahir Shah pushed for inclusive legal solutions based on a compromise, the drafting process and final document ‘arguably coordinated the “insiders” to the constitutional negotiations. The government tried to sideline the traditional power groups … and connect directly with the new groups of intellectuals, whose inclinations were more democratic, liberal, and forward-looking’.Footnote ¹¹¹ As a result, Afghanistan witnessed a shift in the religious-secular law balance; this time a significant swing toward the secular. While the 1964 constitution provided for greater individual rights protections, ‘the document failed to channel political conflict through the political process’.Footnote ¹¹²

In what became its fatal flaw, the constitution ‘prohibited members of the royal family from occupying political offices… .’ This ‘effectively denied Daoud Khan, the King’s cousin and former prime minister (1951–1963), the option to take his disagreements to formal political institutions established by the Constitution’.Footnote ¹¹³ After just ten years, the 1964 constitution fell victim to Khan’s coup, and decades of turmoil followed.Footnote ¹¹⁴ Competing ideological factions continued to struggle for power, with each unsuccessfully attempting to nationalize its own constitutional vision.Footnote ¹¹⁵ With heavily armed factions spreading throughout the country, conflict persisted and eventually culminated with the rise of the Taliban in the 1990s.Footnote ¹¹⁶ But just as quickly as they rose to power, key decisions led to foreign intervention and Taliban’s fall.Footnote ¹¹⁷

2004: foreign interference

In 1996, the Taliban took control of Kabul, and they maintained relative control of Afghanistan through 2001.Footnote ¹¹⁸ But the terrorist attacks of September 11, 2001, and the subsequent U.S. invasion, eventually lead to another constitutional overhaul. Following decades of violent conflict, this time the drafting process took place with no functioning government in place. Much like the situation 1964, in a post-2001 Afghanistan, the relevant stakeholders faced significant challenges. But now, they were working to coordinate competing factions after thirty years of violent transitions, from ‘a constitutional monarchy, to a republic, to a communist dictatorship under Soviet occupation, to a failed and fractured state engaged in devasting civil war, to the home of a fundamentalist and reactionary theocracy’.Footnote ¹¹⁹ Ultimately, the constitutional stakeholders were tasked with establishing an order capable of bringing together a divided and armed society.Footnote ¹²⁰ Unlike 1964, however, there were additional contributors at the table: the United States and the broader international community.Footnote ¹²¹

Given the lack of a functioning government, the drafting of the 2004 constitution was an extended, layered process. First, key factions came together with the international community in Bonn, Germany, to form a temporary government under which the drafting process could take place.Footnote ¹²² Critically, the Taliban were excluded from these negotiations.Footnote ¹²³ Ultimately, despite significant disagreements, the Bonn Agreement was signed and a transitional administration was put in place.Footnote ¹²⁴ But as with other periods in Afghan constitutional history, ‘[i]nstead of a detailed statement of major political issues, the Bonn Agreement simply laid out the process for reform; most issues were left to be resolved by the new constitution’.Footnote ¹²⁵

With the interim government in place, the development of the new constitution continued in a phased approach, including a drafting commission, three separate reviews, and a final publication committee.Footnote ¹²⁶ After three years, the 2004 constitution was adopted on January 4, 2004, and quickly received praise as ‘one of the most enlightened constitutions in the Islamic world’.Footnote ¹²⁷ The document was modeled after the 1964 constitution, and the two documents bear striking similarities in their approach to the nexus between religious and secular law.Footnote ¹²⁸ The 2004 constitution designated Afghanistan as an Islamic republic and Islam was declared a state religion.Footnote ¹²⁹ The constitution also retained a repugnancy clause and continued to favor the Hanafi school of jurisprudence.Footnote ¹³⁰ The drafters included merely thirty-two religious references across thirteen religious provisions, in the longest constitution in Afghanistan’s history.Footnote ¹³¹ Thus, only eight percent of all constitutional provisions can be classified as religious, which constitutes a one percent increase from the 1964 constitution.Footnote ¹³²

Ultimately, the predominantly secular nature of the 2004 constitution left the more conservative stakeholders unsatisfied.Footnote ¹³³ Articles 3 and 130 prioritize Islam in relatively general terms but deliberately leave critical post-ratification questions unanswered.Footnote ¹³⁴ Article 3 guaranteed that no law would ‘contravene the tenets and provisions of the holy religion of Islam’, but left open the question of who would decide when the provision had been violated, or which version of Islam would govern the final determination.Footnote ¹³⁵ Article 121 seemed to indicate that the Supreme Court would fill that role, but the provision’s deliberately vague language left that question open, and led to continued instability post-ratification.Footnote ¹³⁶ With that issue unresolved, ‘[o]n certain occasions, the legislature and the executive threatened to amend the laws that define the powers of the Supreme Court and the [Independent Commission for the Supervision of the Implementation of the Constitution]’.Footnote ¹³⁷ Article 130 required courts to rule ‘in pursuance of Hanafi jurisprudence’, but only when ‘there is no provision in the Constitution or other laws about a case … and, within limits set by this Constitution’.Footnote ¹³⁸ But without an answer to who decides final questions of constitutional review, critical questions remained open post-ratification.

Other, more fundamental structural matters also proved problematic. The 2004 constitution ultimately produced a ‘highly unitary state with strong presidential powers’, but this issue was hotly debated during the drafting process.Footnote ¹³⁹ While some deferred constitutional questions gave way to the practical need to reestablish a functioning government and economy, ‘deferrals over the structure of the government and the electoral system [] provoked significant disagreement and strife’.Footnote ¹⁴⁰ In practice, President Hamid Karzai, through the executive branch, claimed to answer many of the deferred questions himself, generating further disagreement and instability.Footnote ¹⁴¹ By 2016, many policymakers, stakeholders and much of the general public recognized the shortcomings of the 2004 constitutional regime.Footnote ¹⁴² Unfortunately, that recognition never yielded a peaceful constitutional transition via political institutions. To the Taliban, who had no say in the drafting process, the constitution – largely imposed by outside actors – was illegitimate and thus in need of replacement. To bring about change, the Taliban continued to pursue their objectives through violence, and the group ultimately regained control of the country in August of 2021.Footnote ¹⁴³

1998: The Taliban enter the constitutional conversation

From their return to power through to the present day, the Taliban have governed Afghanistan without a constitution. As mentioned above, Abdul Hakim Haqqani’s 2022 book seems to provide a credible framework for the contemporary Taliban-led Afghanistan and constitutes the most significant compilation of religious and legal philosophy undergirding Taliban policies.Footnote ¹⁴⁴ The book addresses various aspects of governance, and because of Haibatullah Akhundzada’s endorsement, it provides reliable insights into the future of the Taliban’s legal, social and political grand design. But going back to their first interval of power, though consistently secretive about the details of a future constitutional regime, the Taliban have shown a willingness to engage in constitutional dialogue.Footnote ¹⁴⁵ To an extent, it appears that the Taliban are open to consulting other ILS’ constitutions, with a caveat – now confirmed by the substantive content of Haqqani’s 2022 book and current Taliban policies – that Afghanistan’s domestic legal system will not be limited or constricted by these foreign legal regimes.Footnote ¹⁴⁶ Despite the fact that the Taliban leaders have previously vocalized commitments to the United Nations and acknowledged that the protection of human rights is of concern, many of these commitments have proven to constitute merely cheap talk.Footnote ¹⁴⁷ Unsurprisingly, the Taliban have also claimed that Afghanistan does not need a constitution because the Qur’an ‘[is] all the constitution they need[]’, and The Islamic State and Its System confirms these sentiments directly. According to Haqqani’s volume, absolute sovereignty belongs to God, and the foundational texts of Islam render human-made laws (including a constitution) unwarranted.Footnote ¹⁴⁸

As the past several years demonstrate, the group is responsible for wide-ranging human rights abuses, particularly in the area of women’ rights.Footnote ¹⁴⁹ These realities necessitate caution regarding the desirability and plausibility of any constitutional process in contemporary Afghanistan. Keeping in mind the 2022 blueprint on governance, Haqqani’s book, and the fact that the group’s ideology has evolved since its first attempt at governance, the Taliban’s 1998 draft constitution provides contextualization for what could transpire. The document contains fifty-six religious provisions, constituting fifty-one percent of its 110 provisions. By comparison, in the 1923 and 1931 constitutions, religious provisions constituted merely nineteen and eighteen percent of total provisions respectively. Interestingly, the 1964 constitution, which seems to be of inspiration to the Taliban, was finalized with merely seven percent of its 128 provisions classified as religious. The 1998 draft’s increase in expressive Islam-based legal language signals a clear intent to shift the religious–secular law balance decidedly toward the religious; however, the document accomplishes this goal by repeatedly qualifying constitutional provisions.Footnote ¹⁵⁰ As an illustrative example, ‘[a]ll the people of Afghanistan … have equal rights and duties before the law’, but only after ‘taking into consideration the Islamic provisions’.Footnote ¹⁵¹ This qualification mechanism enables the Taliban to simultaneously signal a willingness to govern within the bounds of a constitutional structure while leaving open broad left and right limits within which to do so.

Granted, the actual text constitutes merely a portion of the de facto Afghan legal system. Indeed, personal status and criminal law legislation, decrees and other subconstitutional laws impact the day-to-day lives of the Afghan people. And the Taliban have been governing via a variety of ad hoc measures such as directives, decrees, letters, edicts and orders to gradually piecemeal the Afghan domestic legal system in the spirit of Haqqani’s 2022 book. Many of the Taliban’s morality laws – staunchly opposed by the international community – have been issued by the Ministry for the Promotion of Virtue and the Prevention of Vice.Footnote ¹⁵² What is more, uncertainty about the law is compounded by the reality that local Taliban leaders are frequently charged with dispensing justice, a process which may entail rather arbitrary interpretation.Footnote ¹⁵³ In this context, it is paramount to highlight yet again the importance of customary law in Afghanistan. It is the many local variations of custom that reside within the bounds of legally binding obligations observed and executed, especially in Afghanistan’s many rural areas. All these factors taken together will determine the functioning of the Taliban’s legal regime in the near future.

At present, meaningful public participation – an important element in the constitution-making process, especially in societies recuperating from conflict or transitioning from an authoritarian rule – does not seem to be feasible in Afghanistan. As a result, an Afghan constitution is likely not a desirable result in the near term. Women’s exclusion from any aspect of public life, including state governance, further compounds this reality. In addition, there are many ethnic, social and political groups whose preferences are not taken into account by the Taliban government.Footnote ¹⁵⁴ Though scholars and policymakers hold divergent views on what constitutes a good constitutional process, most agree that there are many benefits to involving the public in the process of constitutional drafting.

Some scholars assert that ‘[p]articipatory constitution making is today a fact of constitutional life as well as a good in itself’.Footnote ¹⁵⁵ Indeed, though for years the idea of public consultation in the process of constitutional drafting was somewhat of an exception, the end of the twentieth century witnessed a dramatic shift: an overwhelming majority of recently enacted constitutions either relied on or called for some form of direct consultation from the citizens.Footnote ¹⁵⁶ The pervasiveness of the practice has led some to assert that public participation in constitution making is not only a trend and a highly desirable element in the constitutional processes but also an emerging right, or even a requirement under international law.Footnote ¹⁵⁷ In practice, constitutions and complex bargaining processes that surround their drafting are frequently conceptualized as extensions of domestic peace processes.Footnote ¹⁵⁸ International organizations such as the United Nations and its various organs (including the Secretary General and the UN Human Rights Committee), as well as regional organizations, see the citizenry’s input in constitutional drafting as significant.Footnote ¹⁵⁹ Several international conventions – such as the International Covenant on Civil and Political Rights (ICCPR, Article 25), the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD, Article 5) and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW, Article 7) – discuss the right to participation in public affairs.Footnote ¹⁶⁰ Several regional institutions and legal frameworks also promote principles of human rights, democratic culture and good governance, all of which are crucial in post-conflict constitution building.Footnote ¹⁶¹ In general, arguments in defense of a broad public participation in constitutional drafting highlight the legitimating effects with regard to substantive constitutional provisions and the drafting process itself.Footnote ¹⁶²

These views are disputed by others who argue that extensive public involvement in constitutional drafting is not always beneficial or even possible, especially in the aftermath of militarized domestic conflicts. As Horowitz writes, there are instances when ‘even a deliberative process may fail to find a consensus or appropriate compromise, and even a process that succeeds in doing so may leave some participants unsatisfied’.Footnote ¹⁶³ In general, arguments skeptical about extensive public consultation throughout constitution-making assert that such practices can exacerbate preexisting societal polarization, thereby increasing instability.Footnote ¹⁶⁴ Of course, there is also a much broader issue dealing with the applicability of international legal frameworks to Taliban-ruled Afghanistan. The official website of the Taliban Ministry of Justice states that ‘Afghanistan made a legal commitment to abide by the international human rights treaties …’ and the Human Rights Support Unit – as an internal government mechanism – is to oversee the implementation of human rights.Footnote ¹⁶⁵ These statements stand in sharp contrast with reality on the ground. In January 2025, the Chief Prosecutor of the International Criminal Court has requested arrest warrants for the Taliban leader Haibatullah Akhundzada and Abdul Hakim Haqqani.Footnote ¹⁶⁶

Unless designated interim, constitutions are intended to be permanent as the key component of a state’s domestic legal system. Thus, it is important that procedural choices and design features emerge as a genuine social contract between relevant stakeholders in a society. Granted, each case is unique and the details of the constitution-making process, as well as decisions about which groups and actors should join the bargaining table, differ across time and space. But generally, practice shows that some form of ‘consideration should be given, inter alia, to elite groups and other power holders; ethnic and minority groups; sectarian groups; civil-society organizations, especially those that are organized and active; and women’.Footnote ¹⁶⁷ Consequently, to be accepted as legitimate across Afghanistan’s complex social landscape, the legal system as a whole – including the constitution – must emerge as a result of compromise between the various Afghan stakeholders: political parties, tribal and ethnic groups and religious scholars who represent both conservative and progressive agendas.Footnote ¹⁶⁸

An approach that embodies the logic of inclusive government will engender positive engagement from civil society and the international community. So far, under the Taliban rule, many Afghan people have lost ‘their sense of participation because they do not see themselves represented in the ruling structure’.Footnote ¹⁶⁹ Thus, instead of meaningful participation in the governance of the country, many citizens struggle to find a way forward in an environment filled with coercion and distress.