Talking with the Taliban requires talking about Islam. When peace talks between the Taliban and the Afghan government began in Doha, Qatar last month, however, the Taliban insisted that all disputes must be addressed within just one school of Islamic law—the Taliban’s own Sunni ‘Hanafi’ school.
Given their interest in advancing the talks despite escalating violence, Afghan government negotiators might partly accept this. But the United States, and the international community, should take a longer view. Whilst acknowledging the importance of Islam and, eventually, Islamic constitutionalism in Afghanistan, the US and its partners should withhold recognition of the Afghan Taliban so long as Afghanistan’s constitutional approach fails to accommodate diverse interpretations of Islam.
A 29 February 2020 agreement between the Afghan Taliban and the United States noted that coalition troops will fully withdraw before the summer of 2021, following the start of intra-Afghan talks, no matter what the details of any negotiated intra-Afghan settlement might be.
Twenty years in the making, this withdrawal of US and coalition troops has been a key short-term goal for the Taliban. Yet, the Taliban also crave formal international recognition. This longer-term goal reaches beyond the US-Taliban deal, or Afghan government negotiators, to include the UN Security Council (e.g. removing Taliban leaders from UN sanctions) and, ultimately, bilateral recognition from individual countries. International recognition should hinge on an inclusive approach to Islamic constitutionalism.
‘Hanafi’ parochialism on the part of the Afghan Taliban risks isolating Afghanistan. Muslims who follow other approaches to Islamic law, including Afghan Shi'a, could be reduced to second-class citizens. Moreover, the Taliban’s opening gambit deliberately seeks to place Afghan officials and government negotiators—familiar with Islamic law but mostly trained in universities rather than the Sunni Hanafi madrasas (religious schools) run by the Taliban—on a back foot.
Other Muslim-majority states with a keen interest in Afghanistan will also notice crucial differences: in Iran, the Jafari school of Shi’i legal thinking is constitutionally preferred; in Saudi Arabia, the Sunni Hanbali school is preferred. Even Pakistan, with close ties to the Taliban and a constitution that privileges Islam, has always refused to privilege just one school of Islamic thought precisely to avoid the legal exclusions that inevitably follow from such a move. In Doha, the Taliban are not building a broad legal, political, or diplomatic platform. Even within the realm of Islam and Islamic law they seem to prefer an isolated ‘Hanafi’ island.
In the Afghan constitution of 1964, under King Zahir Shah, the Hanafi school of Sunni law was treated as a point of departure and a placeholder wherever the constitution and existing Afghan legislation were silent (Articles 2, 69, 102). But, as in Saudi Arabia, this legal bias in favour of one approach to Islamic law was always balanced by the overarching discretion of the king. In the Ottoman caliphate, the religious and legal advice of the Shaikh-ul-Islam (Head of Islam) was similarly balanced by the overarching power of the sultan. But the Taliban hope to bypass any such balance between religio-legal and political power. They seek to constitutionalize an ‘Islamic Emirate’ in which, even more than Iran’s (Shi’i) Guardian Council and Supreme Leader, their (Sunni) shura and emir will dominate all sides of the religious, legal, political, and constitutional equation.
References to Islam in the Afghan constitution of 2004—negotiated in Bonn after 9/11 with support from the international community—were modelled on the Afghan constitution of 1964. Afghan judges dealing with individual cases are still empowered to consult Hanafi jurisprudence whenever the Afghan constitution and existing Afghan laws are silent (Article 130). But, today, the Afghan constitution also balances Hanafi law with formal recognition for Shi’i Jafari personal law in the case of Afghan Shia (Article 131). This is crucial. Even the Iranian constitution, whilst privileging Jafari Shi’i law, also provides various schools of Sunni law with ‘official recognition’ (Article 12).
To avoid intra-Muslim disputes regarding the payment of religious alms (zakat), the distribution of women’s inheritance (al-faraid), and many other issues that emerge from different schools of Islamic jurisprudence (fiqh), the international community should oppose the Taliban’s exclusionary demand and encourage a more inclusive approach that is acceptable to all Muslim schools of thought.
From the start, however, the Taliban have resisted any such accommodation. Tied to a vast network of madrasas training students in Hanafi legal thought, their ‘Hanafi-only’ demand is an assertion of institutional as well as discursive power stretching far into the future: insisting on a narrow framework for talks—and, thus, outcomes—they hope to skew the pitch in Doha to ensure that, in the long run, the language of their madrasas trumps all others as the language of Afghan law and politics.
The February 2020 agreement with the US that set up the talks in Doha is expected to produce a withdrawal of US troops notwithstanding any particular constitutional outcome. But, in the long term, Muslim and non-Muslim-majority states should be more cautious, withholding their endorsement and future funding if the language of Afghan constitutionalism is limited to just one school of thought.
The talks in Doha could lay a new foundation for peace in Afghanistan. They could also return Afghanistan to a Taliban-dominated state struggling with global isolation.