By: Clary Doyle
Edited By: Alex brunet and emily yang
In a controversial move, President Joe Biden expedited the withdrawal of U.S. forces from Afghanistan in September of 2021. Within a month, the Taliban had captured the capital in Kabul and entered the presidential palace, effectively instating themselves as the new government of Afghanistan.[1] Although it has been more than a year since the Taliban has regained power in the region, no country has recognized their government as official.[2] Nonetheless, the group has moved forward establishing Shariah law and appointing officials to their thirty-member cabinet which works in conjunction with Mohammad Hassan Akhund—the acting prime minister.[3] Many in Afghanistan have spoken out against the abuses of the new regime which does not allow women to attend school or leave their houses without being completely covered. Thus, while countries around the world struggle to decide whether to recognize the authority of the Taliban in Afghanistan, its citizens grapple with its legal authority. The takeover by the Taliban in Afghanistan raises questions about what constitutes legitimate authority of law and the consequences of different approaches to this quandary. Instead of considering international recognition of Taliban Sharia law, this essay examines whether it can be considered legal according to natural law theorist, Lon Fuller, and positivist law theorist, H.L.A. Hart. I will assert that the Taliban’s institution of Sharia law is legally invalid according to Fuller and valid according to Hart. These determinations have significant consequences because they ascertain whether citizens under this system have the obligation to follow the law. Moreover, I argue in favor of using Hart’s positivist approach to law because it proves the most reasonable and productive theory when considering how to overcome legal systems that do not have popular support.
Let us first examine the legality of the Taliban according to natural law. This theory asseverates that law is valid when based on moral facts of what the law ought to be.[4] In its oldest form, Thomas Aquinas advocated for this approach by arguing that the only legitimate form of law was that which came from God.[5] However, as this theory has evolved, it has veered from pertaining to a “brooding omnipresence in the skies” to something “entirely terrestrial in origin and in application.”[6] To Fuller, natural law is neither a divine order nor “a series of sporadic and patternless exercises of state power.” [7] Instead, law is “the enterprise of subjecting human conduct to the governance of rules.”[8] In order for law to be legitimate, it must have an inner morality defined by what law should not be, rather than what it should. Fuller defined eight ways through which law can fail: no law is established, law is not publicized, there is abuse of retroactive legislation, laws are not understandable, laws are contradictory, law requires conduct beyond the powers of the affected party, law changes so frequently that people cannot orient their behavior by it, and, finally, there is a failure of congruence between the rules as announced and their application.[9] A deficiency in any of these ways “results in something that is not properly called a legal system at all.”[10]
When applying Fuller’s legitimacy test to the Taliban’s system of law, I rely on a combination of data surrounding their rule of the region between 1996 and 2001 and the little that is known about their current administration. With this information, the Taliban’s legal system proves to be invalid according to Fuller. The Taliban, by establishing Sharia law—Islamic law—has installed a system of law. However, Fuller’s definition further requires that law be made available to the affected party and understandable. Although the Taliban’s laws prohibiting women from going to school and leaving their homes without a male escort are frequently publicized among foreign countries, non-religious laws—such as those about probate and contracts—are recondite. Mahmood Mahroon, a professor at Kabul University, says, “There is neither an official constitution nor laws, so they won’t be able to run their justice system.”[11] Additionally, the network of the Taliban judiciary relies on interpretations of Sharia law which is not always cut and dry. Fiqh—the human understanding of Sharia through which it is applied— is controversial and highly debated amongst Islamic scholars.[12] Finally, Haroun Rahimi, assistant professor of law at the American University of Afghanistan, says, “The Taliban has yet to either confirm that the existing laws of the country will remain in force or to lay out a new legal system.”[13] Without clear knowledge of the laws in place, citizens in Afghanistan have no way of feeling safe from the retaliation of state violence for unknowingly violating the law.
Fuller’s definition of legality also stipulates that law cannot be contradictory nor can the rules as announced differ from their administration.[14] According to Bergen’s research, the law of the Taliban fails in these regards as well. The makeup of the chain of command and Taliban judiciary in the early 2000s caused frequent legal contradiction and confusion. Bergen states, “many decisions [were] made through…informal channels, bypassing the formal structures.”[15] This is in part due to the dubbed “shadow government” that the Taliban developed alongside the existing Afghanistan government structures through which Taliban officials had behind the scenes roles in the governance of “every province in the country.”[16] Finally, the administration of law often occurs without due process through Sharia law. For example, “During the 1990s, the Taliban imposed their legal system through the Department for the Promotion of Virtue and Prevention of Vice, which operated a religious police force. The police were empowered to beat and jail offenders, often without any proof or any trial process.”[17] By having a police force that can practically create new law through their arbitrary use of force in the community, the actual administration of law cannot be in accordance with the written law. Therefore, it can reasonably be concluded that the administration of the Taliban fails Fuller’s legitimacy test, making it not a system of law at all.
Having established this, let us now examine the legitimacy of the Taliban according to leading legal positivist, H.L.A. Hart. To begin, Fuller criticized theories of legal positivism because they ask of law “not what it is or does, but from whence it comes. Its basic concern is with the question, 'Who can make the law?’”[18] However, Hart rejected the sub-theory of positivist law that postulates that somewhere within the legal system there must be a sovereign legislative power which is legally unlimited. [19] Instead, the foundations of a legal system “consist of a situation in which the majority of a social group habitually obey the orders backed by threats of the sovereign person or persons, who themselves habitually obey no one.”[20] Hart’s recipe of legality is based on the “rule of recognition” which is the cornerstone of a legitimate legal system. It informs the obligation citizens feel to follow the law, and it is the rule through which every other law in the system gets its validity. Hart establishes two conditions which must be met in order for there to be a rule of recognition. First, most private citizens need to obey the law “‘for [their] part only’ and from any motive whatever.”[21] Second, officials of the system “must regard these [laws] as common standard of official behavior and appraise critically their own and each other’s deviations as lapses.”[22] If both of these conditions are satisfied, the rule of recognition is realized and a system is legal according to Hart.
The system of law of the Taliban fulfills both conditions of Hart’s rule of recognition, and, therefore, is legal. First, the majority of citizens in Afghanistan abide by the law laid down by the Taliban. Some, of course, follow it due to an acceptance of Sharia law; others do so out of fear of punishment.[23] But their motives for compliance do not matter in Hart’s interoperation of law. What matters is their obedience.
The mindset of officials within the system also plays a role in achieving legality. Hart expounds that in order for the second criteria for the rule of recognition to be met, officials in the system must have an internal point of view accepting the law. Hart states that when it comes to the officials, “the simple notion of general obedience, which was adequate to characterize the indispensable minimum in the case of ordinary citizens, is inadequate.”[24] Instead, they themselves must follow the law, and if they see someone disobeying the law, they must look down on that behavior.[25] These conditions are met by Taliban officials. Many of these current leaders grew up under a corrupt and unstable government. The state-run educational system was flawed and decrepit, so many young boys were sent to madrassas— schools that offered “a free education, food, shelter and military training.”[26] This system indoctrinated the ideology of the Taliban into young men who now support and run the Taliban. Therefore, it is not difficult to determine that many of the Taliban’s leaders either support Sharia law because of religious affinity or because they see it as a better alternative to the venality and volatility of the previous government. In Bergen’s words, “the Taliban in the province—from the senior leadership to the rank and file—fell into two categories: they either accepted the legitimacy of the new government or they rejected it but did not feel that fighting against it was appropriate or possible.”[27] Such motives support the internal point of view necessary for a rule of recognition.
These analyses can lead us to conclusions about the Taliban and, more broadly, about natural law and positivist law theories. To begin, according to Fuller, the Taliban’s system of law cannot be considered valid. Therefore, the citizens of Afghanistan are under no moral obligation to follow the law. On the other hand, when applying the positivist approach of Hart, the Taliban’s legal system appears legitimate. Using these conclusions alone, it may seem intuitive to support Fuller’s system over Hart’s because his eight criteria of legality seemingly condemn the rampant human rights abuses of the Taliban such as the flagrant discrimination against women. However, such a conjecture, I argue, is premature. I believe Hart’s view of legal legitimacy prevails over Fuller’s in terms of its rationality and its productivity when considering legal systems that violate human rights.
My arguments in settling the debate between Fuller and Hart do not rest on their claims that one system lends itself to less iniquity than the other. In fact, in my mind, this postulate is incorrect. Both Fuller and Hart’s theories allow for legitimate legal systems which endorse the violation of human rights. For example, it is perfectly reasonable that a system of law could abide by Fuller’s eight requirements for legality and still deny women’s rights. So long as the citizens are aware of these regulations over women and consistent in their application, the system could be deemed valid. Hart’s positivist approach, likewise, lends itself to ‘moral iniquity.’ This needs less explanation, considering the validation it gives the Taliban’s law. Hart admits this, himself, through writing, “In a more complex system, only officials might accept and use the system’s criteria of legal validity. The society in which this was so might be deplorably sheeplike; the sheep might end up in the slaughter-house. But there is little reason for thinking that it could not exist or for denying it the title of a legal system.”[28] Thus, when both systems give way to some sort of wickedness, it is senseless to debate which is superior in these regards. Seeing as though the moral superiority argument does not tip the scale in the direction of either argument, I resolve the standstill by first investigating which theory is more rational. Because Fuller focuses his theory on what legality is not, he never gives an explanation for what practical legality is. Defining a term by a foil creates gaps in an argument. For example, it would be misleading to define war as an absence of peace because it discounts the situations in which there is neither peace nor war, like in moments during the Cold War. Likewise, such a postulate when thinking about legality is irrational because Hart’s criteria for what law is not does not make room for many interpretations of what can actually be considered law. Fuller himself admits that a system of law that achieves perfect legality according to his eight criteria does not exist.[29] The implications of this are severe. For example, Fuller’s idea of legality affirms that citizens of Afghanistan are under no moral obligation to follow the law. However, using those same criteria, there are many countries around the world in which citizens would also have no duty to abide by the law because legal systems are often confusing, contradictory, and what occurs in practice differs from what should ostensibly happen. For example, considering the contradictions in policing policy and policing practice in the United States alone, it would be difficult to argue that citizens of the U.S. are under any moral obligation to follow the law. Another issue that Fuller’s definition of legality runs into is the problem of multiple legal systems. Because law exists in Fuller’s theory solely if it follows his eight criteria, it is possible that multiple legal systems could be established over the same population. This begs the question of which legal system citizens should abide by. For example, in Venezuela, two different men have claimed the title of president in recent years.[30] If Nicolas Maduro and Juan Guaido formed two separate legal systems that mostly agreed with Fuller’s criteria of legality, Fuller’s theory would have no rational solution as to which takes precedence over the other. Moreover, Hart criticizes Fuller, saying, “laws, however morally iniquitous, would still be laws.”[31] That is to say, no matter one’s opinion of the legal legitimacy of a system, that would not stop his/her/their persecution under the Taliban should they violate Sharia law. Hart’s theory of legality does not run into these same problems. By giving a clear definition of what constitutes legality, there is no room for ambiguity. Hart’s theory accounts for the reason why laws exist in imperfect governments such as the United States because he says law does not need to be perfect to be valid; it just needs to be thought of as law. Additionally, Hart’s legality makes sense of a situation in which multiple systems of law claim legal authority. Because his idea of validity only occurs if a majority of people recognize the law, the true legal system would be the one which most people follow. This offers a clear solution to a problem of opposing legal systems. Finally, his system is more rational because it explains the use of punishment and imprisonment for lawbreaking where Fuller’s criteria theory creates a plethora of instances of what would be random state violence because no law technically exists. The second way positivism prevails over Fuller’s natural law approach is through its productivity for those living under the law—the citizens of Afghanistan—who, according to a 2019 survey, overwhelmingly said it is important to protect women’s rights, freedom of speech, and the current constitution.[32] While Fuller’s measures of legal legitimacy encourage governments to be more transparent, they do not necessarily incentivize governments to have the support of the people being governed. For example, there is evidence that the Taliban, “given the desire to be recognized as a legitimate political movement…may seek to formalize and adapt their practices so that they are more methodical and predictable.”[33] It goes without saying that even if the Taliban reached a perfect system of pellucid law and rulings, women—roughly fifty percent of the population—would indubitably be legally discriminated against. Furthermore, Fuller’s recipe for legality gives citizens no insight into how to overcome a legal system that the population is not satisfied with. A system of law deemed valid in Fuller’s terms could only lose its legitimacy if it succumbed to corruption and confusion. For instance, suppose Sharia law in Afghanistan abided by Fuller’s eight criteria of legality, and the people still opposed it. For it to cease to be legitimate, the system would need to significantly deteriorate in one of Fuller’s descriptions of failure. However, no citizen—no matter how unhappy they are —would reasonably advocate for this solely to delegitimize the system of law. Making an already distasteful system worse through confusion or retroactive legislation would only exacerbate the citizens’ grievances.
On the other hand, Hart’s theory of legality encourages legal systems to seek the approval of its officials and constituents. His reliance on social facts in this manner does not have a perfect track record. Many times throughout history, people have accepted and advocated for egregious legal systems embedded with antisemitism, racism, or sexism. Nonetheless, social facts are subject to revision, and they have changed. For example, during the Civil Rights Movement in the United States, many people exercised civil disobedience by not acknowledging segregation laws in different public spaces. Without the recognition of the law by the people, law loses its validity. In response to such protests, the United States Congress revised the laws in favor of these protesters. Considering that support for the Taliban in Afghanistan has decreased in recent years, such a scenario could potentially be mimicked.[34] Should disapprobation build enough to threaten the influence of the Taliban, the Taliban might reasonably respond by trying to make their laws more acceptable in the eyes of the public. Therefore, while Fuller’s definition of legality can be achieved by striving toward his standards of legal clarity, Hart’s legality can be reached through the thoughts and actions of the people.
Fuller would likely respond to this argument saying that if a government was attempting to achieve legality in Hart’s view they could take the avenue of making their laws more pleasing to the people, but an equally viable path would be to intimidate and coerce the people into following the laws. However, Hart states that the subjective excellence of the rule of recognition is a value statement—something that does not concern legal positivists. Moreover, whether a rule is deemed legal according to Hart does not make it morally binding or permanent; it is solely concerned with legality in action.
Additionally, because the rule of recognition necessitates the approval of officials, this, in theory, leads to less corruption as it provides a type of check on the rule maker/s. Fuller could rebut this using the Taliban as an example of a legal system in which most officials in the government are minions within the Taliban’s chain of command. This cabinet, then, is unequivocally corrupt. Nonetheless, the internal point of view is only half of what’s necessary for Hart’s legal legitimacy. This completely discounts his requisite that the people recognize the laws laid down. If, in fact, the citizens of Afghanistan do not recognize Sharia law, they have the power to effectively change the rule of recognition.
The malleable nature of the rule of recognition has profound political consequences when applied to the Taliban, and it is on this point where Fuller’s critiques of Hart’s theory
demonstrate its genius. Fuller contends “to speak of one rule of recognition as pointing to something constantly changing” is illogical.[35] Yet, because the rule of recognition presupposes the recognition of the people, it allows legal legitimacy to bend and adapt to their will. Therefore, the rule of recognition is an argument for democracy even in systems where democracy does not exist.
Furthermore, Hart’s theory provides citizens with the key to take down an unfavorable system of law. It implies that if enough people disobey the law—through negligence, protest, strike, or revolt—a system is no longer legally legitimate. Real political action, of course, requires a great deal of energy, time, and risk. Nonetheless, it is the flexibility of the rule of recognition that has been the basis of revolutions employing civil disobedience, and it will continue to be the bastion of such movements in the future. Consequently, the citizens and officials of Afghanistan have the power to rid themselves of a legal system they do not support by refusing to acknowledge it as law. In conclusion, according to Lon Fuller, the Taliban does not have a legitimate legal system because it malfunctions in the eight ways he says a law can fail. Sharia law instituted by the Taliban is replete with contraction, confusion, and there are gaps between what is said and what is done. Therefore, the people of Afghanistan are under no moral obligation to follow the law. In contrast, Sharia law is legal according to positivist thinker H.L.A Hart. Because the leaders within the Taliban have an internal point of view towards Sharia law and the citizens of Afghanistan mostly comply with the law, the minimum requirements for the rule of recognition are met. Hart’s stance is a controversial one; even so, I argue it is the more rational and productive way to approach the rule of law. While Fuller’s theory calls for pellucid policies that appeal to anyone critical of Kafkaesque governance, it is an aspirational outlook that is hardly realized in any government around the world, least of all the United States. Therefore, it justifies law-breaking almost everywhere. In addition, it does not account for situations of competing legal systems and creates instances in which a state power would be imposing punishments for laws that, according to Fuller, are not really laws. Furthermore, Fuller’s legality can morally bind citizens to follow a system of law which violates human rights. In the case of the Taliban, should their administration organize more effectively, it could make a misogynistic legal system a morally acceptable one. For these reasons and more, Hart’s positivist approach to law is superior. His theory offers a practical definition of legality that can make sense of why imperfect legal systems have power, issues of competing legal systems, and the use of state force for lawbreaking. Although it can establish systems of government that violate human rights, it does not morally bind citizens to follow these laws. Most importantly, Hart’s recipe provides citizens who are discontent with the legal system a means by which to change it. Because the rule of recognition relies on the obedience of a majority of the constituency, theoretically, the people have the power to delegitimize the law. That said, the people of Afghanistan are not bound to repressive Taliban rule. Organized revolt and revolution are possible avenues for the dissolution of the current rule of recognition from which the Taliban derives its legal power. By no means do I believe these arguments will settle the centuries-long debate between natural law and positivist law, but I do feel that they hold political consequence in Afghanistan. Moreover, this interpretation empowers people everywhere who are unhappy with their legal systems by reminding them of their power to play a role in the law.
NOTES:
1. “War in Afghanistan.” Global Conflict Tracker, https://cfr.org/global-conflict-tracker/n conflict/war-afghanistan. Accessed 9 Mar. 2022.
2. Saul, Ben. “‘Recognition’ and the Taliban’s International Legal Status.” ICCT, 15 Dec. 2021, https://icct.nl/publication/recognition-talibans-international-legal-status/.
3. How Will the Taliban Govern Afghanistan and Who Is Mullah Mohammad Hassan, the New Prime Minister? - Vox. https://www.vox.com/22665508/taliban-afghanistan-prime minister-supreme-leader-hassan-haibatullah. Accessed 5 Mar. 2022.
4. Hart, H. L. A. The Concept of Law. Clarendon Press, 1961.
5. Murphy, Mark, "The Natural Law Tradition in Ethics", The Stanford Encyclopedia of Philosophy (Summer 2019 Edition), Edward N. Zalta (ed.), URL = <https:// plato.stanford.edu/archives/sum2019/entries/natural-law-ethics/>.
6. Fuller, Lon L. The Morality of Law. Yale University Press, 1969.
7. Ibid.
8. Ibid.
9. Ibid.
10. Ibid.
11. Glinski, Stefanie. “12 Million Angry Men.” Foreign Policy, https://foreignpolicy.com/ 2021/10/28/afghanistan-taliban-justice-sharia/. Accessed 10 Mar. 2022.
12. Rahimi, Haroun. The Taliban, the Afghan State and the Rule of Law. https:// www.aljazeera.com/opinions/2021/9/1/the-taliban-the-state-and-the-rule-of-law. Accessed 10 Mar. 2022.
13. Ibid.
14. Fuller, Lon L. The Morality of Law. Yale University Press, 1969.
15. Bergen, Peter L., and Katherine Tiedemann. Talibanistan : Negotiating the Borders Between Terror, Politics, and Religion. Edited by Peter L. Bergen and Katherine Tiedemann, Oxford University Press, 2013.
16. Ibid.
17. Forbes, Jami. “The Significance of Taliban Shari`a Courts in Afghanistan.” Combating Terrorism Center, https://ctc.westpoint.edu/the-significance-of-taliban-sharia-courts-in afghanistan/. Accessed 5 Mar. 2022.
18. Strahan, Thomas W. The Natural Law Philosophy of Lon L. Fuller in Contrast to Roe v. Wade and Its Progeny. https://www.lifeissues.net/writers/air/air_vol15no4_2000.html. Accessed 15 Mar. 2022.
19. Hart, H. L. A. The Concept of Law. Clarendon Press, 1961.
20. Ibid.
21. Ibid.
22. Ibid.
23. Bergen, Peter L., and Katherine Tiedemann. Talibanistan : Negotiating the Borders Between Terror, Politics, and Religion. Edited by Peter L. Bergen and Katherine Tiedemann, Oxford University Press, 2013.
24. Hart, H. L. A. The Concept of Law. Clarendon Press, 1961.
25. Ibid.
26. Sultana, Aneela. “Taliban or Terrorist? Some Reflections on the Taliban’s Ideology.” Politics and Religion Journal, vol. 3, no. 1, 1, 2009, pp. 7–24. www.politicsandreligionjournal.com, https://doi.org/10.54561/prj0301007s.
27. Bergen, Peter L., and Katherine Tiedemann. Talibanistan : Negotiating the Borders Between Terror, Politics, and Religion. Edited by Peter L. Bergen and Katherine Tiedemann, Oxford University Press, 2013.
28. Hart, H. L. A. The Concept of Law. Clarendon Press, 1961.
29. Fuller, Lon L. The Morality of Law. Yale University Press, 1969.
30. Hellinger, Daniel. “Venezuela Crisis Explained: A Tale of Two Presidents.” The Conversation, http://theconversation.com/venezuela-crisis-explained-a-tale-of-two presidents-111198. Accessed 17 Mar. 2022.
31. Hart, H. L. A. “Positivism and the Separation of Law and Morals.” Harvard Law Review, vol. 71, no. 4, 1958, pp. 593–629. JSTOR, https://doi.org/10.2307/1338225. 32. How Will the Taliban Govern Afghanistan and Who Is Mullah Mohammad Hassan, the New Prime Minister? - Vox. https://www.vox.com/22665508/taliban-afghanistan-prime minister-supreme-leader-hassan-haibatullah. Accessed 5 Mar. 2022.
33. Forbes, Jami. “The Significance of Taliban Shari`a Courts in Afghanistan.” Combating Terrorism Center, https://ctc.westpoint.edu/the-significance-of-taliban-sharia-courts-in afghanistan/. Accessed 5 Mar. 2022.
34. How Will the Taliban Govern Afghanistan and Who Is Mullah Mohammad Hassan, the New Prime Minister? - Vox. https://www.vox.com/22665508/taliban-afghanistan-prime minister-supreme-leader-hassan-haibatullah. Accessed 5 Mar. 2022.
35. Fuller, Lon L. The Morality of Law. Yale University Press, 1969.
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