British Sociologist Anthony Giddens posits that the initial foundation of the modern world is that humans are the masters and owners of their world and can make all types of creation, innovation, and transformation. The foundation of the tradition is that God/gods are the lord and owner of the world and humans, and humans are subject to divine providence, legislation, and all-encompassing will. In this confrontation, the modern world has been trying to dismantle the tradition for a long time, and as German Philosopher Carl Marx says, smoke its hard and solid values and send them into the air. Therefore, the issue of modernity and tradition is the story of new versus old, old versus new, and static versus dynamic. This conflict started centuries ago in the West, and the growth of information and the convergence of nations and civilizations in a forward process caused it to spread to the ends of the world and expand the area of this sanctuary.
Therefore, the geography called Afghanistan and its people are not exempted, and the breath of modernity has long been felt and the conflict between tradition and modernity has taken over them. The most important developments in the modern world were the extensive changes that occurred in the field of human rights and people’s perceptions of government, rights, and law. Governments were no longer the proxies and shadows and representatives of God on earth, but they were organizations that emerged from among the people through a social contract and were the protectors and supporters of the rights and interests of the people, not their parents and owners. This means that the modern world required to create a legal document that explains the terms of this contract, what is called the law. However, the Islamic-tribal tradition ruling Afghanistan was not ready to embrace this great development and it was clear that it would resist with high resilience. After the beginning of the 20th century, the rulers of Afghanistan, who had no choice but to face the conflict between tradition and modernity, could not take risks and give up on tradition, nor could they ignore modernity. Therefore, they chose the intermediate path and created a mixture of these two, what I call the failed marriage of tradition and modernity. This story has been repeated three times during the 20th century and the beginning of the 21st century, and similar to the story of Ant and Timur, it continues. In this article, I intend to discuss these three failed experiences of mixing and intermingling or the failed marriage of tradition and modernity, considering the most important legal documents of these three historical periods, such as constitutional and penal laws, which were the main battlefields of interaction and confrontation between tradition and modernity.
First Period (First Marriage)
This period began with the rise to power of Amanullah Khan (1929-1919), the modernist King of Afghanistan, ending with his removal from power. One hundred years before today, he proclaimed the first contract between tradition and modernity merging these two irreconcilable figures in Afghanistan. By establishing and approving the basic constitution of the government against Afghanistan and a series of other constitutions, particularly the general penal constitution, the King practically brought the traditional country of Afghanistan into a new world laying the foundations of the codified legal system for Afghanistan. However, the people of Afghanistan considered it legal and political heresy thus avoiding approving it. The spirit of this legislation left people with wonder as to what would happen to the Sharia, the rules of the Sharia, the Quran, and the custom of the Afghan people, which we call “tradition”.
Amanullah Khan, by including the materials that he and his associates believed would allow the reconciliation of tradition and modernity, wanted to make them understand that the formulation of the country’s legal system and the recognition of a series of their rights and freedoms would never harm their Sharia and their beliefs. Therefore, in the second article of the constitution, it was stated that the religion of Afghanistan is the holy religion of Islam and its official and public religion is the Monif Hanafi religion. Other religions, such as Indians and Jews in Afghanistan are subject to the payment of jizya and have distinctive signs, provided that they do not disturb public comfort and customs.
As it was written, in this article they even neglected equality of rights and privileges of Muslim and non-Muslim citizens to satisfy the traditionalists.
In the fourth article, the people of Afghanistan are promised to be obedient to the orders of the King by the Sharia and the constitution, and in the fifth article, it is written that the essence of His Majesty the King is the servant and protector of the Islamic religion and the ruler of Afghanistan.
In the thirteenth article, the citizens of the country are given the right to complain to the relevant authorities in case of illegal behavior of the agents. Article 16 details the rights and equality of Afghan citizens before Sharia and the system, and Article 21 states that the courts deal with people’s problems and complaints according to Sharia.
This procedure was also adopted in the General Penal Code, with an effort being made to both observe the Sharia law and make legislation. Therefore, they put the crimes related to Hudud, retribution, and death under the responsibility of Sharia and started criminalizing things that were outside the Hudud, retribution, and death. As mentioned in the introduction of that system, in this system, tazir punishments are established for crimes committed against the government, community, or a person, which do not include the crimes of hudud, death, and retribution, and determining their punishment is the responsibility of the commander.
Nonetheless, in the 10th article of this constitution, slavery was abolished, which was a traditional practice, and Islamic law not only prohibited it, but throughout the history of Islam, religious and political leaders used it, and there were long discussions for the sake of regulating affairs. Slavery of Muslims is in jurisprudence books. This created the Sharia consensus on the legality of slavery. Additionally, personal freedom was recognized. Arbitrary detentions and punishments were banned and the press was freed. The right to trade was granted to the general public. Education was considered the right of the people and everyone was granted the right to work in the government. People’s housing, correspondence, and personal privacy were protected from attack.
This was one of Amanullah Khan’s efforts to engage and integrate tradition and modernity. However, firstly, from the point of view of tradition and traditionalists, the spirit of legislation on his part was a religious, moral, and political heresy, and did not reflect a traditional Afghanistan. Secondly, this legislation was considered an encroachment on the privacy of Sharia and the customs of the Afghan people. Thirdly, the rights and freedoms enshrined in this constitution were not appreciated by the people of Afghanistan, particularly the Sunni people- even if it was for their benefit.
Amanullah Khan’s procedure was similar in practice. He was attempting to both satisfy the traditionalist elements and implement the reforms he desired. It was not long before tradition rebelled against modernity. As reported, Mullah Abdullah, known as Mullah Lang, was holding the penal code in one hand and the Quran in the other hand, shouting at the people, “Which one do you like?” People approved the Quran. He announced that Jihad against Amanullah was obligatory. This uprising covered the whole country and the country that was trying to save itself from the stranglehold of tradition, fell back into tradition and thus this political marriage of tradition and modernity ended.
Second Period (Second Marriage)
The second attempt to combine tradition and modernity started during the decade of democracy and gradually reached its peak during the government of the leftist parties from 1992 to 1978. Indeed, contrary to the public’s beliefs, who believe in the blasphemy of the leaders of the left parties and consider their system to be secular, anti-religion, and anti-God, they can be considered as the second advocates of marrying tradition and modernity. They also tried to bring tradition and modernity together in the inconvenient land of Afghanistan. During that period, three constitutions were approved and implemented during the reign of former Afghan Communist Revolutionary Babrak Karmal and former Afghan President Mohammad Najibullah. The basic principles of the Democratic Republic of Afghanistan (DRA) were approved on April 14, 1978, the Constitution of the Republic of Afghanistan was approved on November 30, 1987, and the Constitution of the Republic of Afghanistan was approved on May 29, 1990.
In the declaration of the Revolutionary Council of the DRA on the approval of the basic principles of the People’s Democratic Republic, it is stated: “On behalf of all the Muslim and working people of Afghanistan, based on the true will and interests of the workers… with deep respect and serious regards for historical, national traditions, cultural and religious of the honorable people of Afghanistan… by following the religion of Islam…”
In the first article of these basic principles, the democratic republic belongs to the Muslim people of Afghanistan. In the fifth article, the democratic republic is obliged to respect and preserve the religion of Islam, and according to the sixty-third article, the state emblem of the government is decorated with the mihrab and pulpit, the Islamic rituals.
In this way, in the first sentence of this declaration, the “Islamism” of the Afghan people was placed before the working class, which the leftist rulers considered themselves to be its representatives, and in the following sentences, this constitution obliged the government to preserve and observe the religion of Islam.
In the first constitution of Najibullah’s rule, the left parties were under more pressure from traditionalists and tried to display a more religious government. As it is written in the introduction of this important legal document, this constitution is approved following the principles of the holy religion of Islam. In the second article of this constitution, it is stated that the religion of Afghanistan is the holy religion of Islam and no law can be enacted contrary to the fundamentals of Islam, and the emblem of the government in this constitution is also said to be Islamic rituals, mihrab and pulpit.
In the second constitution of the Najib era, which was an amendment to the first constitution, they added the suffix “Islamic” to the Republic of Afghanistan. At the same time, it has been emphasized to observe and protect the religion of Islam and that no law should violate the rules of the holy religion of Islam. In the 74th article of this constitution, the president takes oath in the name of God to support the fundamentals of the holy religion of Islam, which was recorded in the previous constitutions of Karmal and Najib.
Throughout this period, in criminal matters, the Penal Code approved in 1976 was mandatory, which placed the observance of the limits of the crimes, retribution, and death on the responsibility of the Islamic Sharia and was limited only to the criminalization of penal cases.
On the other hand, in all these laws, governments are committed to complying with the Universal Declaration of Human Rights. They are obliged to grant National sovereignty to the Afghan nation and have recognized a series of rights and privileges of Afghan citizens. This was the second attempt by Afghan elites and governments to reconcile tradition and modernity. However, the tradition and the traditionalists were not satisfied and entered the campaign again with the slogan that sovereignty belongs to God, the same old tactic, failing this marriage.
The Third Stage (Third Marriage)
The third stage of this forced marriage of tradition and modernity began with the defeat of the Taliban, the pro-tradition, against the resistance and the entry of international forces and the Western-educated elites of Afghanistan into the country. This was crystallized in the Constitution approved on January 26, 2004, and later in the Afghan Penal Code.
This constitution begins with the name of Allah and the first verse of Surah-e-Hamd wishing peace on the Prophet and his family and companions in Arabic. The first sentences of its introduction are as follows: “We, the people of Afghanistan, have firm faith in the pure essence of God Almighty, trust God’s providence and belief in the holy religion of Islam…”
In the first to third articles of this law, the state is called the Islamic Republic, and the “religion of the state” is the holy religion of Islam. It is also stated that no law can be enacted contrary to the beliefs and rules of the holy religion of Islam, and the oath of the president, the judges, and everyone has been recorded in the name of God and with the commitment to observe the rules of the holy religion.
It is also stated in the second article of the Penal Code: “This law regulates the crimes and punishments. Perpetrators of hudud, retribution, and death crimes are punished according to the rules of Hanafi jurisprudence of Islamic Sharia.”
This is even though it is emphasized in Article 130th of the Constitution that if there is no ruling in the Constitution or other laws in a case, the courts can refer to Hanafi and Jafari jurisprudence even in the same crimes and punishments.
However, in the preamble of this constitution, members of the Loya Jirga declared their commitment to comply with the United Nations Charter and the Universal Declaration of Human Rights. In the seventh article of this constitution, the government is committed to the United Nations Charter, international treaties, international covenants to which Afghanistan has joined, and the Universal Declaration of Human Rights. In this constitution, national sovereignty is considered to belong to that nation, with their basic rights and freedoms protected.
This was the third attempt by Afghan elites to reconcile tradition with modernity. However, the traditionalists were never satisfied and once again entered the field with the same tactic of ” Judgment belongs only to God ” and this marriage also went down in history like the previous times. Thus, during a century, the history of Afghanistan has been repeated three times. Karl Marx said that history repeats itself; the first time as a tragedy and then as a comedy, but he did not state what the third time is like.
Today, following the victory and complete conquest of tradition and traditionalists over the country, many elites and people of Afghanistan are trying to once again remove the ground for the pro-tradition people. But the basic question is, which way will the people of Afghanistan turn to after the defeat of the traditionalists? Do we stick to the failed experience of the past or do we choose a new way to join the new world and save ourselves from this skyrocketing?