Reforming Property Laws in Post-Conflict Societies
Case Study: Afghanistan
In Afghanistan, property laws are not enforced or formalized in the same government-overseen way as in Western nations. Different institutions, mainly traditional and religious authorities and the government, disagree with to whom land belongs and what it can be used for. My paper explores land as a form of power and analyzes the conflict between religious authorities, cultural traditions, and the government over the right to control and use land. Afghanistan is a post-conflict country, with many areas still in conflict, and this hampers the ability of the Afghanistan government to set up stable infrastructures to enforce property laws. This paper matters for people who wish to see economic development in the world because stability is needed in property laws, especially agricultural land, in order for Afghanistan to continue developing and in order to provide food and job security for its citizens. The topic matters to me because food security, agriculture, and localized economic development are important issues and these all directly depend on who controls land and what they decide to do with it. Violent and ideological conflicts are also areas of concern for myself and other political scientists, and I hope this paper will paint a clearer picture of conflict over land specifically, in both theoretical and case-specific frameworks. This paper seeks to answer the question: How can stable property laws be established in a post-conflict society?
Literature on Islamic Property Rights and Property Law Reform
The literature relevant to establishing property laws in post-conflict Afghanistan has evolved over time as issues pertaining to how property can best be regulated were looked at under different lenses. All the literature dealing with property laws in Afghanistan, or property laws in Islamic countries, however, did stem from and respond to previous discourse on the universality of effective property systems. The first section, below, explores and summarizes three important steps in the evolution of how property laws should be created and maintained in post-conflict Afghanistan, and then add a fourth as an additional suggestion.
Post-Conflict Societies in General
Scott Leckie of the United Nations Human Rights Council reports that “issues of housing, land and property rights in post-conflict societies have recently been given heightened attention on the international agenda”(Leckie, 2005:iii). Because of this, scholars and international organizations have been giving more attention to theorizing and testing novel means of establishing stable property laws, as opposed to the ad hoc solutions used in attempts to establish stable property laws in developing countries in the past that actually work to increase and prolong conflict 1 by not using a human-rights based framework and instead assigning property in ways that increase secondary conflict when more than one party has an interest in the same piece of property. These issues are discussed in Leckie’s 2005 paper which served as the executive summary for a roundtable discussion at the United Nations around addressing housing, land, and property(HLP) rights using the resources of the United Nations. The paper is centered around the HLP challenges common to all post-conflict societies, so although it does address the unique barriers in Afghanistan, like the higher legitimacy of traditional laws than state laws, it serves as a solid framework for the discussion on an effective establishment mechanism for property rights in a post-conflict society.
These common challenges 1 include property being the return of displaced individuals, the legal framework needed to create stability, the loss of housing stock in conflict, and recurring chaos due to powerful interests 2. Even if there is no indecision about who a piece of property should belong to in a post-conflict society, ensuring the voluntary and safe return of displaced people to their society is difficult. The United States Institute for Peace writes that armed groups must be demobilized, paths must be de-mined, and vulnerable groups must be protected from abuse 3. Providing the displaced population which that information, information they need in order to make an informed choice whether or not to return, is another issue that needs to be tackled. There’s also the issue that there may be no home to return to. The problem of housing stock being destroyed by conflict can be remedied with housing reconstruction, housing reparation, temporary shelter, and temporary housing 4. A general issue of property rights in post-conflict societies is land grabbing due to destabilization of the law. This manifests in Afghanistan as high-powered military officials, who took command after the fall of the Taliban, claiming land for their own5. The illegal occupation of land by influential people is one of the main types of land conflict in Afghanistan, outlined by the Afghanistan Research and Evaluation Unit(AREU) 6. Besides these challenges, there are harms specific to Afghanistan slowing the development of a stable property system that extend from the country’s roots in cultural and religious law.
Countries Under Sharia Law
In the case of Afghanistan specifically, like any aspect of their legal system there is a deep religious influence due to the extensive presence of Sharia and traditional law. In particular, scholars such as Sait and Lim have said that in order to join the discourse on what would be best for property laws in Afghanistan, the very notion of property and ownership must be approached from an Islamic perspective7. In order to join the political discourse, in other words, one must first join the Islamic discourse, and this opens its own set of problems in the form of the outsider dilemma generated by other nations joining the conversation on how to best write a universal property law policy for Afghanistan while keeping in touch with Islamic principles. This is not impossible, and Islamic principles have led to entirely different political and legal systems across the globe due to the widespread influence of the religion8. Each area and culture has used Islam and Sharia law for their own purpose, and that cultural relativism has created many variations on Sharia.
The central tenet that holds constant among all Islamic conceptions of property law is the depiction of human ownership as a temporary lease. The Islamic belief is that the ‘true owner’ of all things on Earth is God, and so any property lent to humankind must be used in a way that God would approve of7. This is where the outsider dilemma manifests directly, because any advice or arbitration given by Western nations towards a Muslim society like Afghanistan about any form of property law, in this case land ownership, is at its core an assertion about what their God would like them to do with their land, and how it should be allocated.
Besides scholars on Islamic law, government and NGO reports on development in Afghanistan provide helpful data and historical context for the persistent land conflict problems in Afghanistan. Decades of conflict have eroded Afghanistan’s land management systems9, and this has led to many competing sets of laws and rules governing the possession and distribution of land. Among these are customary law, traditional law, Sharia law, and the laws set up by the Afghani government. Although the Afghani government would be assumed to have the most legitimacy, customary law is actually widely followed, and Afghans are generally looked down upon if they choose to adhere to legal principles set by the state instead 9.
Foreign States Entering the Discourse
The purpose of this paper is to explore the legitimization of a unilateral property law system in modern Afghanistan in a theoretical, as well as practical matter. To accomplish this, the theoretical framework will be building off Antonio Gramsci’s writing on competing hegemonies and legitimization of authority 10. His work on competing hegemonies is applicable to the many legal systems at conflict with each other for dominance over property laws, and the legitimization of authority is not just the ends of this conflict, but also a necessary means to achieve stable property laws with the help of international states and organizations. Gramsci’s views on genuine authority and the necessary role the consent of the governed plays in it’s conception are influenced by Machiavellian tactics of outsider rule, and this makes them even more relevant to the challenge of entering the legal discourse of another culture.
At the base level of the discourse on land reform, you have theorists like De Soto who advocate for a universally applicable system of land reform 11. This system revolves around a very economic view of land. Unused or informally owned land is deadweight loss, and this economic view led him to creating and advocating for a system that prioritizes surveying, recording, and monitoring of the land by the state in order to bring the capital back to the state. His recommendations are widely respected, and used by such organizations as the United States Agency for International Development (USAID). Narrowing the focus, there are more contemporary scholars on land reform, like Sait and Lim, who believe that land reform in Muslim societies is a different beast entirely due to the aforementioned views of property in general within the tenets of Islam7. This raises the barriers of entry to the discourse by adding a religious element. They believe that in order to have a dialogue with the government of Afghanistan or another Muslim nation, how possible changes to property law can exist under the umbrella of Islamic values must necessarily be a part of that conversation.
Entering Cultural Discourse in Addition to the Political
My stance on the issue, elaborated in this paper, is that in addition to the Afghan government, dialogue and resources should be focused on the religious and traditional leaders of the cultural sphere. This dampens the competition between the cultural and political hegemonies, and allows for stable and lasting legal reform.
Over time, the literature for this issue has evolved from a general theory of property laws, to a need for Islamic discourse over property laws in countries operating under Sharia law, to the challenges and strategies for foreign nations and bodies who want to help design and ratify property laws in those societies. All of these have focused on the political sphere, but the cultural sphere holds significant enough influence on the shaping and legitimization of laws that it should not only be considered a factor in the political discourse, but should be treated as a separate, equally important platform for reform.
This approach is a method to use cultural discourse as a conduit for the understanding of the property issues common to all post-conflict societies from writers like Leckie to enter the political sphere in a more organic and effective way. Since Afghanistan is a nation whose official laws operate under the Sharia framework, and in which Islam has large cultural and societal weight, additional information about Islamic conceptions of property and ownership must be understood in order to make the discourse effective.
Theoretical Framework: Hegemony, Authority, and the Organic Intellectual
Hegemony as a concept in Gramscian discourse is the power of the ruling class to exercise control over society. As a practical definition, in “Letters from Prison” Gramsci makes the distinction between cultural and political hegemony. The two concepts are differentiated by the Machiavellian scale between controlling through consent (direzione) and force(dominazione). Cultural hegemony stems from the former, where the evolution of spiritual, moral, or other beliefs of a society lead to the infrastructures and systems they create and reside within. Political hegemony uses the latter, a strength in weaponry and numbers controlled by the state to enforce societal structures and laws. The goal of the Prince, in the case of Machiavelli, or the ‘modern Prince’, the revolutionary party, is to achieve both to such a level that the beliefs and systems become so universal the hegemony is unnecessary. When the population consents to be ruled, either through a change in culture or through discourse, force is no longer necessary. When the state controls an unopposable force, hegemony of culture can still be achieved, but is not a requirement for the masses to adhere to the societal constructs of the ‘prince’. However, when both are achieved then resistance from either side dissolves and the hegemony maintains itself from either side. The goal of this ‘double hegemony’, achieved when the same body controls and influences both the cultural and the political spheres, is an important concept for formalizing laws in an area like Afghanistan with competing hegemonies. Although the political hegemony exists in Afghanistan in the form of the Afghan government, the cultural hegemony exists in the form of tribal, religious, and cultural customs. When these systems lead to different legal structures in the case of property law, it becomes a case of competing hegemonies.
The double hegemony is the means and the ends to solving this dispute. However, the influences on the culture of the people are different than the influences on the government. A religious leader may hold tremendous influence in a community whose beliefs and culture are shaped by religious authority of discourse, but their views will not hold much weight in the political arena. Whereas, Organizations outside the national of Afghanistan, USAID for example, may have strong connections with the Afghanistan government, but hold very little influence on the cultural and spiritual practices of the Afghan people. If anything, the religious leaders have more power due to the presence of the people they influence as a voting block, a revolutionary force, or producers of discourse, all of which can alter the political atmosphere. Politics, however, have a harder time effecting the cultural atmosphere or interpretations of religious doctrines that lead to spiritual and traditional values.
Enter the organic intellectual. The ‘organic intellectual’ is a term and concept Gramsci borrows from Marx. It is an intellectual, an individual with major potential to contribute to the political discourse and action, who is closely tied to the lower class or the population seeking change. These are the individuals with the most potential to influence either the political or cultural hegemony, and are uniquely able to achieve the double hegemony. Machiavelli, in The Prince, spends most of the book advocating to the politically and militarily powerful prince the methods he should use in order to legitimize his rule. He does this through tactics and deception in order for his new subjects in each conquered state to accept him as one of their own. One tactic for example, is moving the prince into the newly conquered territory. This a pure example of the ruler trying to enter the culture directly so that they can influence the cultural hegemony, as political hegemony alone does not lead to stable rule. Apply this to Afghanistan, where no matter the power of the state government or international bodies, the cultural and traditional practices cannot be overridden. The outsider, the modern day prince, is antagonized by the community and further separates the hegemonies further when the only way to reach stability is to blend them together.
My advocacy lies in political action and attention to achieve this fusion, as opposed to the current focus on the political sphere. Institutional change without a fundamental change in the culture supporting the desire to adhere to the changes has little to no effect without the use of force as a coercive mechanism. A state can pass a law that it believes will be beneficial, such as allowing women to own land, but without the support of the cultural sphere, the law is just a formality that does not achieve much. Unless, of course, it garners the support of the organic intellectuals who shape the dialogue that creates the cultural hegemony. In a society adherent to traditional structures based in religion, like Afghanistan, these are the religious leaders; the Imams, the Mullahs. These organic intellectuals are woven into the cultural discourse and hegemony, but have political mobility and voice as well. As mentioned earlier, the people hold power as a voting block, a revolutionary force, and producers of discourse, and through these powers have influence in the political sphere that has no equal and opposite equivalent. The voice of the heads of the cultural hegemony is the voice of the people, or can at least sway the voice of the people due to their status.
This means that attention should be brought to advocating political reform to these organic intellectuals. Achieving meaningful institutional change can only be done this way, with regards to the cultural hegemony and the ones who mold it. In a society with a sharp divide between the cultural and political expectations and desires, discourse and opinions brought by an outsider into the political sphere only widens the chasm. My position is that in order for the discourse to be effective, it must be targeted to and involved with the leaders of the cultural as opposed to the political sphere.
Case Study: Afghanistan
With the theoretical framework established, what follows is a look at property law conflict and reform in Afghanistan using the Gramscian systems of hegemony, competition between political and cultural hegemonies, and genuine authority as a lens. The property law reform conflict in Afghanistan lies between the government, the political sphere, and the motley of cultural systems used for law and arbitration, including traditional, religious, civil, and customary law.
Although Afghanistan is a post-conflict society, sections of the nation are still very much in conflict. After the soviet war in Afghanistan, ending in 1989, Afghanistan went through four civil wars, the final two ending in stalemates, before the War in Afghanistan started between the International Security Assistance Force (ISAF) and Afghanistan against the Taliban and Al Qaeda. Political reform as a priority has to contend with the attention and resources spent on minimizing the damage done by conflict. The authority of the state is in flux in a time of conflict, and the cultural authority shifts discourse and teachings to address the unique issues of the time.
The inheritance laws regarding property vary area by area, especially within rural communities where different ethical and legal systems are culturally dominant. The people of Afghanistan are not at all homogenous, nor are their ethical systems. The Pashtun people are an ethnic group that span southeast Afghanistan and northeast Pakistan. They have a system of ethics, Pashtunwali, which dates back to pre-Islamic times, and therefore differs from Islamic law, Sharia 12. Although Sharia grants daughters and widows the right to inherit land, Pashtunwali denies it. Pashtunwali consists of an interrelated set of tenets like honor, and bravery, that are applied differently across different areas where the code is followed, and this makes it difficult to engage with and understand 13. A majority of land conflict takes place in the southwest and the southeast, so understanding and engaging with Pashtunwali is necessary to engage with effective property law reform.
However, the problem of women inheriting land is not limited to Pashtunwali communities. the Rural Development Institute (RDI) reports that Afghan women are usually denied their rights to inheritance due to cultural and societal pressures 14. The Afghanistan Research and Evaluation Unit report shows that allowing women to inherit land as part of the official civic law does not lead to pragmatic success in that area. Under the 2004 Afghan constitution, the job of handling land conflict falls to the local, not the federal government, and issues involving women inheriting land are left out entirely, leaving them to the domain of customary law. This is a prime example of cultural hegemony blocking the progress made the in political sphere.
Even when done in the standard passage of parent to children, inheritance leads to land conflict. Repeated intergenerational inheritance leads in families with more than one child lead to the land being divided many times without official recognition or notification of the split, intensifying the trend of conflict over land inheritance. This system is only harmful due to the lack of an overarching legal system where splitting land between heirs can be recorded and legally validated 9.
The issue of different groups’ visions for property laws in Afghanistan is further challenged by those who believe the right to ownership should not be applied to land at all. Some ethnic groups in Afghanistan, like the Kuchi, are fighting against property law reforms because it conflicts with their nomadic lifestyle 15. There are two ways of thinking about Gramscian hegemony, one being the method used in this paper, and the other treating a hegemony as something not even observable unless one looks outside their own society, due to how ingrained and accepted it is. The idea of property ownership is an example of that accepted norm, and nomadic tribes like the Kuchi are a counter-hegemony.
Current Resolution Methods
These conflicts, diverse in reason and intensity, are dealt with inefficiently by the current system in Afghanistan. In 2010, the Harmid Karzai administration created the Afghanistan Land Authority (ALA) in order to improve private sector access to unused land 16. The ALA is only tasked with allocating public land however, and most of the disputes are over private property which the ALA has no control over.
Stanford’s Afghanistan Legal Education Project (ALEP) 17 says that although Afghanistan has a Special Lands Dispute Court, it is biased towards settling issues of returning refugees, and is not versed in the more common conflicts related to land grabbing and inheritance. Also, the court is an arbitration court, and has no enforcement power, rendering their decisions impotent.
Instead, most land cases are dealt with in civil courts. The civil courts use a combination of state, civil, and religious law. This not only leads to inconsistencies, but puts up barriers to reform in that each of the three branches must reach an agreement to make a paradigm shift. The Afghan Constitution 18 prohibits laws that are inconsistent with the pillars of Islam, so religious law holds the most weight in these courts, even though religious and customary laws do not have a single accepted code or interpretation. The cultural hegemony extends to the political sphere in the form of Sharia law and this mandate of the constitution.
Due to these inconsistencies and inadequacies of the official arbitration systems, the Afghan people seek structured alternatives outside the government courts, for example, Jirga 19. Jirga is an assembly of elders in the Pashtunwali culture that serve as an arbitration court. The style of Jirga varies between areas, and sometimes money or property is collected from both sides in a dispute in order to be distributed to the winner after arbitration.
Foreign Interest and Assistance
Organizations like USAID have been trying to create and stabilize property laws with a variety of projects like the Land Titling and Economic Restructuring of Afghanistan(LTERA) project 20, and the Land Reform in Afghanistan(LARA) project 21. The LTERA project works to collect and digitize land records in Afghanistan communities, but this comes with unique problems including corrupt officials incorrectly registering land claims to give property to themselves or others. The LARA project’s goal is to move Afghanistan away from a donor-driven economy and guide effective investments into their industrial sector.
USAID also has interest in bringing democracy to Afghanistan, and established the Democracy and Governance program in order to achieve this 22. Although establishment of a broadly accepted national government is their main goal, they seek to establish it by providing information and assistance instead of taking over, and so they are more like Machiavelli, authoring a guide to establish hegemony that can be followed or ignored, than they are the Prince with tangible power.
Islamic law is a constantly evolving field, subject to the interpretations and influence of a geographically and culturally diverse set of communities who follow and shape their version of Sharia. There is a rich discourse occurring around Islamic conceptions of property laws, spreading wider in the age of globalization than previously possible. USAID and other bodies are in a prime position to join this discourse, and any American Muslims versed in property law and reform would be a great asset as they provide legitimate entry into the conversation on Islamic principles, as opposed to the outsider bias experienced by Western reform projects in Afghanistan in the status quo.
This discourse should take place, in order to be effective, with the movers and shakers of the cultural hegemony instead of focusing exclusively on reform through the government. Laws are only useful insofar as people follow them, and the organic intellectuals of Islam are the legitimate authority needed to blend the political and cultural hegemonies fighting over the way property is managed in Afghanistan.
Instability due to conflict between legal systems and instability due to physical conflict are intimately connected in that one is likely to arise in a community rife with the other. More research should be done on the social and legal structures competing for land in Afghanistan so that the conflict can be stemmed and land can be used and developed effectively.
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2. Garlick, Madeline. “Protection for Property Rights: A Partial Solution?”. Refugee Survey Quarterly, Vol 19., No. 3. UNHCR. 2000.
3. “Return and Resettlement of Refugees and Internally Displaced Populations”. United States Institute.
4. Seneviratne, Krishanthi; Amaratunga, Dilanthi; & Haigh, Richard. “Addressing Housing Needs in Minimizing the Problems of Post-Conflict Housing Reconstruction”. 2012.
5. Bradley, Megan. 2008. “Refugee Returns and Land Conflict in Afghanistan: Challenges and Opportunities”. Government of Canada, Policy Research Division.
6. Duchamps, Colin & Roe, Alan. 2009. “Land Conflict in Afghanistan: Building Capacity to Address Vulnerability”. Afghanistan Research and Evaluation Unit.
7. Sait, Siraj and Lim, Hilary. 2006. “Land, Law and Islam: Property and Human Rights in the Muslim World”
8. Ali, Wajahat & Duss, Matthew. 2011. “Understanding Sharia Law”. Center for American Progress.
9. Nijssen, Stephanie. 2011. “From Dispute to Resolution: Managing Land in Afghanistan”
10. Gramsci, Antonio. 1973. “Letters from Prison”. Harper & Row Publishers. New York, NY.
11. De Soto, Hernando. 2012. “The Mystery of Capital”. Basic Books.
12. Kakal, Palwasha. “Tribal Law of Pashtunwali and Women’s Legislative Authority”.
13. Hawkins, Jonathan. “The Pashtun Cultural Code: Pashtunwali”. Australian Defense Journal, Issue 180, page 18. 2009.
14. Scalise, Elisa. 2009. “Women’s Inheritance to Land and Property in South Asia”. Rural Development Institute.
15. Lemer, Wiebke & Foster, Erin. 2011. “Afghan Ethnic Groups: A Brief Investigation”.
17. Stanford Law School. 2012. “An Introduction to the Law of Afghanistan” Chapter 4: Property Law.
18. 2004 Afghan Constitution
19. The Asia Foundation. 2010. “Afghanistan in 2010: A Survey of the Afghan People”. The Asia Foundation.
20. USAID. 2009. “Land Titling and Restructuring in Afghanistan”.
21. USAID. 2012. “Land Reform in Afghanistan”.
22.”Democracy, Human Rights, and Governance”. USAID.