Wonk Out: Incredibly Dense Stuff about Pakistan, Pashtuns, and Law

Posted on May 26, 2011

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No lies, I’ve been slow to write because I’ve been incredibly lazy over the past few days. But today I listened to a good (if a little dated) analysis of the influence and future of western intervention in Pakistan. In considering our goals in Afghanistan and Pakistan, in our fight against the Taliban and al-Qaeda, I think we often lose sight of the context: Who are the Taliban and how did they join with al-Qaeda? What is the playing field in which they are active? And how do our short-term goals of eliminating targets in the region impact the future of that population, both in its perceptions of and actions towards us, and in its perceptions of itself, its own identity, condition and goals?

Really, the myopia of our actions in the region can be terrifying. I could hold forth for quite some time on the disconnect between the experience on the ground, the Pakistani public and private presentations of the issue, and the American filtered version of the news. But I think the Intelligence Squared debate I linked above does an adequate job of that. So instead I’d like to take the narcissistic step (on my narcissistic blog) of reposting a paper I wrote a little while ago that relates to the subject in (I like to think) an interesting way.

Whereas most of the dialogue that many (including myself) have engaged in up to now talks about the immediate ramifications of the experience of chaos and destruction on the ground in Pakistan, in this paper I wanted to trace some of the more essential and existential consequences of the current situation in the tribal Pashtun regions of Pakistan (which are of supreme importance in American policy as of late). The paper’s a real hack job and probably not well enough researched (there’s only so much you can do without setting boots on the ground in the Federally Administered Tribal Areas), but I think it does a decent job of painting a picture of identity change, of talking about how a population can react and adapt to the encroachment of another force upon their sovereignty, and of how that can potentially translate into lasting consequences for an encroaching force and for the population itself.

Keep in mind I don’t steadfastly believe in or agree with all I’ve said in this paper, and I recognize that the existing data to draw from is a little … sparse, to say the least. But the intention is more to raise a few questions as to identity shifts and the dangers of ambiguous or hostile encroachment upon a peoples. I’ve written further on the subject if any of you are crazy enough to want to see it. But for now, this.

The paper’s pretty dense, although I do try to keep the language light. If you can make it through it, bless you, because it’s also incredibly esoteric and most of the larger-scope points about identity, crisis, and the dangers I wildly speculate about in the region only come up towards the very end of this meandering mother fucker. But if you’ve got the stomach for it (read: if you like to wonk out now and then as I do), then enjoy I suppose:

THIS PAPER aims to examine the extent and nature of the influence of Islamic law in the tribal Pashtun communities of Pakistan. These tribes present a unique case through which to examine the introduction, adaptation/evolution, and application of Islamic law in a non-Arab region—a region that has developed its own vastly different code of conduct well suited to the stability and survival of its population. Many of these Pakistani Pashtun regions have never fallen under control of a foreign or centralized power and even now, despite their geographic location, they constitute a de facto separate and sovereign element from the Pakistani nation. The Pakistani government recognizes this status by implicitly advertising its lack of a monopoly of force in the region, requiring military escorts of fifteen to twenty men with ties to the tribes to accompany just one to three individuals into Pashtun tribal lands (Khan 1, 2). “Out of the 600 federal laws of Pakistan, only 44 apply in the Tribal Areas, and none of these directly affects the lives of the [Pashtuns],” meaning that, with qualification, the system of law in these regions remains a relatively unspoiled example of tribal law and Islamic law mingling, compromising, and coexisting. Through this case, then, one may gain a better understanding of why some tribes accept Islamic law, the function it serves, and the manner in which it changes social structures and the dispensation of law in those communities.

To preface the bulk of this examination, a few definitions must be offered as to the terms to be used in this paper. Islamic law in this paper refers to a complex system of rules and norms derived from the Qur’an and the Hadith and the continual and evolving interpretation and application of that system by a class of legal scholars and judges. Undergirding itself with the cosmology of Islam, this form law uses a deterrence-based system of punishment and a variety of schools of interpretation to offer a pluralistic field of judgments to achieve order and stability in communities (Hallaq “The Question of the Religious Character of the Law”).

The word Pashtun refers in this paper to an ethnic group present across the border of Afghanistan and Pakistan with strong immigrant populations in both southern Pakistan and the Persian Gulf (Khan 33). The term Pashtun is spelled by sources variously as Pathan, Pushtu, Pushtun, Pakhtun, Pashton, and Pashtoon, but this paper shall use the former spelling (while citing sources that refer to it otherwise) as this is the form most commonly used in the United States and thus most familiar to many readers (“Pakistan: People”). The classification Pakistani Pashtun refers here not to all Pashtun living in Pakistan, but to the subset who occupy the Federally Administrated Tribal Areas of North and South Waziristan, Kurram, Khyber, Mohmand, and Bajaur (moving from south to north geographically). (For the remainder of this paper, unless otherwise noted, Pashtun and Pakistani Pashtun will be used interchangeably as other Pashtun groups are not the primary concern of this endeavor.) This limitation has been made for two reasons: The first, already stated, deals with the lack of real authority by any state in this region. The second deals with ethnic predominance as there are more Federally Administrated Tribal Areas, but the areas listed are those in which Pashtun have historically been and remain to be the dominant ethnicity both in terms of population and power.

Arguably one could make the case that those Pakistani Pashtun not living under conditions of autonomy and predominance are no longer or soon will cease to be Pashtuns at all. “A Pathan is recognized by other Pathans not so much by racial characteristics as by his adherence to [P]akhtunwali,” a code of tribal law and conduct (to be described in depth below) (Khan 33). Yet “Pashtuns have difficulty practicing Pashtunwali where there is economic disparity and especially where they are unable to act autonomously,” meaning that those in cities and especially under the firm control of a state will usually start to slack off in their adherence to the code, and as such compromise their identity as Pashtuns (Karkar 12 and Khan 36). Even with the key to Pashtun identity located, differences in histories and conditions of subsets of Pashtun tribes have led to a great deal of variety in Pashtunwali (again, this term may be spelled in as many ways as Pashtun, but always with the suffix –wali, which shall identify it) in terms of stringency of observance, sources of authority and enforcement, and ties to other systems (Muqawama). However the shared experiences and environments of the subset noted above suggests that, with only slight variation, the Pashtunwali and thus the nature of Pashtun identity, will be virtually identical for the Pakistani Pashtun.

“In the Pashtun’s mind, Pashtunwali [also] has a religious identity in Islam,” which stresses the point that religious observance is also tied up in Pashtun identity (Karkar 2). The Pashtunwali practiced in Pakistani Pashtun tribes tends to be quite zealous on this point, praying five times a day while traveling, even when the Qur’an makes provisions for travelers to pray only once a day, and looking down upon sick individuals who abstain from fasting, despite similar provisions for their health (Khan 39, 40). The tribes recognize these provisions, but feel they only apply to the faint of heart (Khan 40). Imran Khan, a Pashtun and documentarian of Pashtun customs and attitudes, attributes this attitude to the hard lives of the Pakistani Pashtun and the attractive Islamic message of salvation (39). Regardless of the cause of this extreme devotion (the exploration of which is beyond the scope of this paper), a dedication to Islam and observance and consideration of the faith throughout life above all hardships remain central to Pakistani Pashtun life.

In Afghanistan, this observance and dedication manifests itself in the coexistence of Islamic courts and the institutions for the administration of tribal codes, “jirgas” (“Pushtunwali: Honour among them”). Maulvi Sayeed, a member of an Islamic council distributing a version of Islamic law in Kandahar, Afghanistan, acknowledges the place of jirgas in dealing with non-religious spheres of life and accepts even some overlap in the jurisdiction of the two types of courts (“Pushtunwali: Honour among them”). Yet just across the border, in the exceptionally zealous heartland of the Pakistani Pashtun tribes, no reference to such Islamic councils may be found in any literature. Granted, the remote and hostile nature of this part of the world for outsiders has put a damper on scholarly works, making the task of researching such institutions incredibly difficult. But no work consulted, out of all the resources available and ranging back to the mid-19th century, not even those concerning themselves with lengthy explanations (however biased) of tribal law and Islamic practices in the region, make even oblique mention to the existence of distinctly Islamic law courts in Pakistani Pashtun tribes.

The perseverance of Pashtunwali practices in the region and the absence of outright dispensaries of Islamic law was explained away by most early observers, who said of the Pakistani Pashtun that they were “[…] generally ignorant of everything connected with their religion beyond its most elementary doctrines,” even if they did practice those vigorously (Ridgway 32). This view held that the lawless tribes’ adherence to Islam was largely shallow and superstitious (Gazetteer of the Peshawar District 147). An examination of Pashtunwali as practiced by the Pakistani Pashtun, though, both in its relation to the local religious authorities and its rules and norms, will reveal that Islamic law did and does exist within Pakistani Pashtun lands, enveloped within, modified by, and functioning alongside and through their version of Pashtunwali.

The following discussion of the subtle insertions of Islamic law and its monitors, guardians and dispensers into the tribal system of legislation and adjudication in the Pakistani Pashtun lands may be questioned on two grounds: Either one may argue that the elements of Islamic law identified in this form of Pashtunwali are coincidental, or one may argue that Pashtunwali’s current system actually arose through institutions (courts or councils) of Islamic law and adapted later to common tribal problems and methods. It is necessary to preempt this discussion and the dissent it may provoke, then, with a brief overview of the core elements of Pashtunwali and their age.

The origins or Pashtunwali cannot be confirmed given the difficulty of identifying the origins of the Pashtuns and the fact that their language (and tribal code) has only been written for less than 500 years (“Pushtunwali: Honour among them”). “Pushtun amateur genealogists (that is, most Pushtun men) say Pushtunwali is 5,000 years old” and even the more studied like Pashtun leader Wali Khan will claim the code flows back 4,000 years (“Pushtunwali: Honour among them” and Ernst 69). No source, though, presents Pashtunwali as postdating Islam, either in its introduction to the area or its genesis. There exists a fair case, then, that when Islam entered the region, it did face a version of Pashtunwali and some form of a Pashtun identity.

What this identity and code consisted of is unfortunately buried in the prehistory of the written Pashtun language. However, by pulling out the threads common to all forms of Pashtunwali one may approximate some sense of this early form of the code that governs the Pashtun. In his attempt to establish the identity of the Pashtun to lead an independence movement, Pashtun nationalist Mohammad Yunus made a concentrated effort to pull out the primordial core of Pashtunwali and arrived at a system which stresses equality and retaliation, holds unconditional hospitality towards and protection of any guest (even criminals) in the utmost regard, vows revenge for damages done to a man or a clan’s person(s) or honor, and offers a system of amnesty to end the blood feuds such a system may engender (5-7). Though certain elements of this code share much with other tribal codes, it is the intensity and focus on honor and retaliation and the mechanisms by which feuds are ended that make it unique.

From birth, the Pashtun learn that the qualities of honor, equality and vendetta “[…] are more important than life itself, so that he does not mind killing or dying” (Khan 39). Language also reinforces this point as, “in Pushtu, to be disgraced means literally to be an outsider,” so an insult to one’s honor is linguistically equivalent to a form of banishment, and with it comes the shame and hardship of banishment (“Pushtunwali: Honour among them”). While many guesses may be set forward as to the function of this revenge, its origins remain vague. It is possibly a means of ensuring balance, saving face, and preventing one unit of the culture (tribe, sub-tribe, household) from disrupting the social balance by rising over another. This is supported by the fact that a tribe can form a council to retaliate against an individual who shows undue cruelty towards or takes disproportional vengeance upon a weaker individual  (Khan 28). Such a council could also be called to intercede in feuds that dragged on far too long without one tribe or another seeking an end to the feud under the provisions of Pashtunwali (Khan 32). This was often necessary as feuds, fueled by indoctrination of children, can last for hundreds of years, as did one in 1870s Tirah where a man from the Afridi tribe killed two of a tribesman’s cousins for cutting off his horse’s tail; over the course of a century, the feud claimed hundreds of lives (Khan 35).

These councils, the “jirga”, have varied in their composition and source of authority over time, but have always held the power to pass “[…] legislation on tribal disputes, dealings with the government, murder cases and so on. It can award fines or death sentences or banish people from the tribe” with utmost legitimacy (Khan 32). Even those who fetishize Pashtunwali will admit that tribesmen often sought to take law into their own hands, “yet they seldom choose to act against the fundamentals of these age-long traditions and institutions” in large part because they knew and still know that the jirga possesses the legitimacy and means to cause them as much social grief as their enemies (Yunus 7). However the tribal law worked best within small units, where legitimacy of the jirga and its decisions was easier to establish. Knowing one’s own leaders and council members could extinguish fears of bias and difficulties in establishing consensus on judgments across different needs and values. And the tendency for entire tribes, even leaders, to set themselves as the best examples of Pashtun life, even refusing to acknowledge other tribes as Pashtuns, further complicates the matter of using jirga courts in their original form across tribal lines (Khan 77). The jirga system, then, is efficient and binding, but slow to administer law—especially in larger, trans-tribal cases—and acknowledged this shortcoming as in the case of the adjudication between the Asad Khel and Durdani tribes over claims to the Serobi Dam, about which a member of the jirga lamented that the decisions of the council would take many years and allow much bloodshed in the meantime (Khan 72). These relatively pure Pashtun jirgas and Pashtunwali practices may well have been the accounts of earlier visitors, who remarked that certain portions of the tribal areas were prone to continuous conflict (Baha 4 and The Gazetteer of the Peshawar District 122).

But at times one finds accounts in which Muslim religious officials would involve themselves with the jirgas. This is remarkable as records indicate that such men would have been originally barred from these meetings. To enter into a jirga, one must be a “malik,” which at one point meant a landowner, and explicitly forbid participation to “faqirs” (or “fakirs”), which was an early term for a religious Islamic wanderer (Baha 133). Records of early contact also indicate that at some point (and up to the time of the record in some groups) the maliks were in subordination to “khans,” or lords (Gazetteer of the Peshawar District 99-100). Councils, though, eventually took on religious leaders not as observers or separate entities, but as maliks within the jirga, like “Pir” (Saint) Yacub Shah Danishmandi, a recent malik of the Murkis tribe in Naigoram (Khan 28). Around the same time, records begin to note maliks not as hierarchical authorities under the thumb of any individual, but as equals, honor-bound to their tribe and to Pashtunwali (Karkar 6 and Khan 31).

It is difficult to prove any causal link based on this scant evidence as to whether a change in the councils allowed Muslim practitioners to begin distributing justice via the jirga, or whether Muslim entry into the jirga led to a change in the priorities of the maliks. However the example of the powindah (fully nomadic) Pakistani Pashtun, looked down upon by other Pashtun in part for their need of permission to move freely and in part for their reputation as less observant Muslims, offers a hint at the truth of the matter—in the powindah tribe of the Sulaiman Khel, when a boy loses his father, if that father was a malik, he becomes a malik regardless of his wisdom or age (the qualifications for the maliks of other tribes) (Khan 35, 113, 116). This suggests that the introduction of Islamic voices (the missing link between powindah and non-powindah Pashtun jirgas) into the jirga altered the nature of the maliks and of Pashtun towards their maliks. “Individuals within the tribes [were] highly independent and well aware of their rights” at this point and as such would eagerly punish maliks who did not have the interests of tribal cohesion and wellbeing at heart, as in a case form 1890 in which several maliks of the Mahsud tribe were assassinated for passing legislation misrepresenting the interests of the Mahsud (Khan 28). This demonstrates a clear shift in sources of accountability for maliks from hierarchical khans (who ruled even if egalitarian values were culturally espoused in Pashtunwali) towards a more democratic form.

Support for this hypothesis that Islamic authorities embedded themselves in the jirgas of the Pakistani Pashtun and thus embedded Islamic law in the otherwise purely tribal system may be seen in the way Pakistani Pashtun now talk about their legal system and specific laws which have a striking resonance with Islamic legal practices. British observers eventually made note of the use of Islamic laws in regards to cases appearing before certain jirgas dealing with matter untouched by pure Pashtunwali, hinting at the emergence of a trend towards Islamic law as part of and administered through tribal justice systems (Burn, Cotton, Meyer, and Risley 190). Note is also made that, though the Pashtun were known for the cultivation of opium and production of opiates, “the Pathan is [now] generally abstemious, and outside the towns the use of opium and spirits is regarded as disreputable. Smoking is universal, despite the efforts of the Mullas to put a stop to it,” clearly showcasing the insertion of Islamic legal values into society (Burn, Cotton, Meyer, and Risley 168). Even in cases which were not previously unregulated, the record belies a shift towards Islamic legal values in the Pashtunwali. The practice of khai, killing all male members of a family and inheriting their women like chattel, was once common in Mahsud Pashtunwali practices, but fell out of practice (Khan 53). When attempted by six Mahsud in the early 1990s, resulting in 11 deaths, a jirga was summoned and sentenced the six men to death. Coupled with a tradition that a man pay a dowry to his bride and prove himself a good shot (the equivalent of proving his ability to care for her in this society) and provisions restricting polygamy to those who could afford to treat equally all of their wives and one notices a distinct shift away from the treatment of women as commodities (even beloved ones, a treatment that shall be seen below) and towards the treatment of women along the lines of Islamic law, but enforced via Pashtunwali and its jirga mechanism (Khan 53, 72, 140). And as a cap, while jirgas previously could settle blood feuds through death sentences or fines, Pashtunwali also seems to have begun to offer, after some members of a tribe went on the Hajj, the option of Islamic law to forgive without payment or bloodshed an enemy for a murder, as in the case of Haji Bahram Khan, responsible for over 40 deaths in his Waziri sub-tribe over two decades (Khan 73, 77).

More important in demonstrating this hypothesis than individual cases and whiffs of change and connection between the two systems is the language with which Pashtuns speak about Pashtunwali. One account holds that, “tribal criminal justice is rooted in Islamic tradition […] the aim is to satisfy the aggrieved party,” while another creates a new myth for the origins of the Pashtun and Pashtunwali in a common ancestor named Qais who brought Islam and its laws back to his people after meeting Muhammad (Khan 28-29 and Burn, Cotton, Meyer, and Risley 18). By claiming a tie between their law and Islamic law, the tribes recognize that an element of Islamic law, either in spirit or practice, is carried over into their tribal law, into Pashtunwali, and dispensed by the sources of tribal authority, the maliks, bound as they are to honor the Pashtun, themselves wrapped up in honor Islam. And alongside the maliks sit a host of spiritual authorities to guide the dispensation of Islamic law out of the jirgas.

It is worth noting that the historical record would not support a notion that Islamic law swept into Pashtunwali quickly or in any way that would have displaced tribal practices deemed necessary. In 1829, during subjugation by the Sikhs, Sayad Ahamad Shah emerged with a force to save the Pashtun lands. However, while the Pashtun admired him as a hero, when he attempted to use his status to impose a strict Wahhabi regime of Islamic law upon the tribes, displacing their older tribal systems, they rejected him (Gazetteer of the Peshawar District 265). One might wonder then what function allowed for the shift within the Pashtunwali, in some claims within the timeframe of British observations, towards Islamic law. This paper shall put forward a defense of the ideas that the services Islamic figures offered to Pashtunwali, their respect for the most essential tribal customs allowed for their influence upon Pashtunwali, and the nature of those services in the political environment of the day allowed them to enact these changes at times with great rapidity.

Islamic figures offered Pashtunwali a sense of higher authority. As custom and tribal law like Pashtunwali is often based upon unwritten law and accumulations of practice, it can at times become slippery and claims among equals will have difficulty, as noted above, (especially across tribes) in establishing the norms by which to adjudicate a case (Layish 63). But Islamic figures in the region had developed a form of hierarchy and respect among the population (by what provenance this came about is unknown and beyond the scope of this paper, although it is essential that more study is conducted on the subject) (Burn, Cotton, Meyer, and Risley 170). This common respect, possibly linked to their allegiance to a faith that the Pakistani Pashtun deeply abided by and their origins as a landless subsection of societies, manifested at one point in the granting of communal lands to Islamic groups (Baha 135). These lands were to host religious institutions only and to be used to sustain Islamic figures off of its proceeds, but they were not simply charitable organizations like a waqf—the lands were specifically those most contested between tribes and religious groups were placed upon them in part to help buffer and hold questionable territory (Baha 135). This ability to pacify tensions between tribes manifests again in relation to jirgas composed of many tribes, seen as the most difficult to arrange (Ridgway 20). One of the first clearly recorded cases involves the use of Mulla Pawindah in 1903 to call together a jirga at Jandola quickly and efficiently and to speak in favor of a course of action with some influence on the maliks’ decision (Baha 41). The jirga at Jandola hints at a larger trend of deference by the maliks to the views of Islamic figures during jirga adjudication. This is also well demonstrated by the reference to Pirs (saints) in some jirgas as “badshah” (king) and the practice of rising in deference to the Pir when he entered a congregation (Gazetteer of the Peshawar District 144). Drawing upon some influence or tradition, the Islamic figures present in the jirga were able to command respect across tribal lines and thus to influence both individual cases and the direction of Pashtunwali in general.

But for all their bluster, there were several items that the Islamic figures in the jirgas could not remove from Pashtunwali that were expressly against Islamic law. Pashtuns practice even now raids and kidnappings upon travelers in their land, which they see as legitimate actions (Khan 15). More notably in regards to women, despite movements towards Islamic practices in some fields, Pashtunwali retains clauses making it clear that a man can kill his wife for adultery without trial, that any non-arranged marriage is a death sentence, and that women cannot seek divorce (Burn, Cotton, Meyer, and Risley 164 and Khan 140). This would not be extraordinary were Islam just starting to take hold of an area as Aharon Layish notes in his writings on Islamic law’s interactions with tribal law, “decisions of shari’a courts are carried out only to the extent that the shari’a norm is compatible with custom” (63). But the disparity between this treatment of women versus the treatment of women espoused in the Pakistani Pashtunwali customs listed above, those that appear to have been influenced by notions from Islamic law, is stark enough to raise questions as to why the total treatment of women could not be shifted by influential Islamic figures moving within the Pashtunwali system.

Most of those Pashtunwali practices that fly in the face of even the spirit of Islamic law are allowed to persist despite the presence of Islamic officials in jirgas and popular sentiments linking Pashtunwali with Islamic law simply because they serve a purpose. The exchange of daughters as brides without their consent, though not justified in Islamic legal views, is vital to ending blood feuds between tribes by binding them with a blood bond, and thus must remain as an essential tool for the jirga to settle destructive conflicts brought about by other facets of Pashtunwali (“Pushtunwali: Honour among them”). Likewise, the use of the vesh system of inheritance in some variations of Pashtunwali in Pakistan is a fine example of maintenance via utility. The vesh system allots communal land to private landholders by lottery and then rotates possession every five years so that those working poorer lands will have the opportunity to subsist on better fields for a time; it is only practiced in regions of the tribal areas where tribes face great scarcity in resources (Gazetteer of the Peshawar District 147). Elsewhere vesh is not vital to communal peace and security, and so inheritance norms promoted by Pashtunwali vary (Ridgway 22). In these regions, closer inspection may find systems of inheritance that trend towards Islamic legal practices. But so long as a region demands the practice of pure tribal Pashtunwali, no manner of influence from an Islamic figure, even embedded within the Pashtunwali system and its jirga, can change that law. No evidence is available to support the notion that any individual ever previously did attempt to challenge vital Pashtunwali practices from within, much less on religious grounds. This either tacit or active respect for Pashtunwali by Islamic minds operating within it may have earned further respect among these individuals and helped them to entrench their influence and navigate the political system at the time.

During the 19th century, the British inaugurated a system for negotiating their influence over the jirgas and their legislation and adjudication known as the Frontier Crimes Regulation (Khan 29). This involved a process of allowing jirgas to issue verdicts that the British could not override, but then using the verdicts as an excuse to round up Pashtun of the same tribe as the verdict was issued against living in the settled areas (Khan 29). But beyond this, the system also involved the payment of and power to nominate for a spot on the jirga various maliks, which their reports readily admit to be a ploy to win over and conquer the central figures of the Pashtunwali system (Baha 14, 31). Whenever a tribe was not financially dependent on these British allowances distributed out by the maliks, they would disown British maliks and set up leaders with tribal interests (Khan 28). Although a clear record does not exist, the lack of dependability of maliks and their regular acceptance of British money, the money of those who sought to subjugate the tribes, may have instilled a sense of doubt about the malik system.

British agents bribed Islamic figures as well. During their wars with Afghanistan, the British learned that they could override overtures for Pashtun unity from the Afghan Pashtun to the Pakistani Pashtun by paying off mullahs to slander other Pashtun tribes on Islamic legal grounds and spark up domestic infighting (Khan 100-1). They were also to use mullahs to influence peacetime jirgas towards Anglo-friendly verdicts—Mulla Pawindah, who called the 1903 Jandola jirga, turned out to have influenced the council while on the British payroll (Baha 41). Yet fewer records exist of their ejection from the jirgas. This may be in part because the maliks were more corrupt, or because the corruption of mullahs was not as visible, but in large part it must be credited to the political actions of the bulk of mullahs.

Throughout the period of British rule and even earlier, Islamic figures led the fight for the continued independence and total autonomy of the Pashtun tribes. Pir E Roshan first united the bulk of the tribes against the Mughal ruler Akbar, and though Akbar was unpopular for his political stances towards the Pashtun, Pir E Roshan attacked him on Islamic grounds, holding up Islamic law as a banner under which to fight for autonomy (Khan 21-2). Later the faqir of Ippi would unite the Pashtun against the British, almost entirely justifying his long guerrilla war on the grounds that the British had violated the Islamic legal concepts held up within Pashtunwali by removing a Hindu girl from marriage to a Pakistani Pashtun Muslim due to age concerns (Khan 67). The maliks were unable to carry out this role as the rallying posts of their people against oppression and colonialism because in part they lacked a cohesive body of thought to do so from. Despite a common identity in Pashtunwali and the relative similarity in Pashtunwali across this region, as has been mentioned the superior sense of tribes among other factors always gave Pashtun nationalists quite the headache to overcome. As a result, attempts to organize Pashtun political resistances around a Pashtun identity were often vague and ill-defined (Yapp). But beyond that, the equality of men at the heart of Pashtunwali meant that, “every Pathan tribal malik considered himself an equal to the [malik uniting the people], and the slightest discourtesy or affront by the sultan could lead to a rebellion” (Khan 21). It was only the divine standard of Islam and Islamic law, above man and cutting across tribes in its cosmology and basic concepts, that could serve, through Islamic figures, to unite the Pashtun against the various drives of the British and all past and future enemies against them (Burn, Cotton, Meyer, and Risley 157-8).

Islam and Islamic law, then, by embedding itself within Pashtunwali, the law and culture of the Pashtuns, was able to unite the tribes both for legislation and adjudication and for defensive purposes. While British influence over maliks discredited the system, the positive influences of Islamic law allowed for the expansion of that system into untouched areas of society and to influence and shift existing laws so long as these shifts did not knock askew practices vital to the wellbeing of a community. This hypothesized connection helps to explain the observation that, “Islamism has rivaled Pushtunwali for centuries it has often gained prominence, as currently, in time of war. More typically, the two competing ways have cross-fertilised” (“Pushtunwali: Honour among them”). As hinted above and revealed explicitly here, though undoubtedly Islam has existed alongside Pashtunwali for ages, it is crisis and the fear of occupation that allows for the questioning of the fallible and slow malik system and gives Islam a chance to prove its worth and assert its influence and legitimacy to Pashtunwali and Pashtun identity.

The advent of the modern state complicates this process, this balance between Islamic law’s rise during crisis and its normalization and the application of useful pure Pashtunwali tribal law in times of security from invasion. The creation of a Pakistani state, as noted above, has not invalidated the authority of the Pashtun areas, but it has created a state of almost perpetual crisis among the peoples. The laws of Pakistan apply on the roads running through the tribal areas, a grim reminder to the Pakistani Pashtun of the threat to their way of life (Khan 5). Beyond this, the foundation of the Federal Shariat Court in 1980 and subsequent moves to Islamize the nation by nullifying the effect of laws deemed repugnant to Islamic law threatened the Pashtunwali tribal practices that were clearly in opposition to Islamic law (Hallaq Shari’a 484). It is this urge for a national Pakistani identity, especially one centered around Islam, which, though it has not touched the borders of the Pashtun, has raised the hackles of many ethnicities, the Pashtun included (Riaz 55). The state and political Islam seek “[…] to replace the authority of the jirga with the mullah, customary law with Islamic sharia,” which to the Pashtun is tantamount to a robbery of their identity and subjugation of their people (“Pushtunwali: Honour among them”). The state, then, and especially the Pakistani state, provides a constant mode of crisis in which to mobilize Islam and Islamic law within the Pashtunwali.

At the same time, the accumulation of wealth and increased interplay between the Settled Areas and tribal units that has come along with national unity has lessened extreme interpretations of pure Pashtunwali—key among these shifts is the move away from robbery as tribal ties increasingly flow into the traditional sites of raids (Khan 54). Inflows of cash from Pashtuns in Karachi and the Persian Gulf have also decreased the dependence of Pakistani Pashtun on the maliks (Pakistan maintained the British FCR system and keeps maliks influenced and on payroll) (Khan 33). This has opened space for rapid and massive change within the Pashtunwali system, creating rifts and invalidating codes, and offering the chance for enterprising Islamic figures to influence the tribal code towards the dictates of Islamic law.

The extension of practices similar to Islamic law within Pashtunwali since the creation of Pakistan hold this hypothesis up. Since the 1970s the separation between gender rights has grown in Pashtunwali system, mirroring developments in Islamist movements across the border in Afghanistan (Khan 132, 134). Proponents of Islamic law even succeeded in shutting down most of the Mahsud war dances in the early 1990s, ending an ancient part of that tribes Pashtunwali conduct without great reason save for the espousal of one grim form of Islamic law (Khan 60). The jirgas themselves have started to change in their nature even more rapidly—instead of ad hoc councils formed within tribes to settle singular disputes, current accounts have the jirgas sitting in continual session, hearing six cases in a day, and taking over 90 percent of all the conflicts in an area (“Pushtunwali: Honour among them”). The speed, nature, and target of these reforms, when taken together, do more than just, as in the past, fill holes in the Pashtunwali system with Islamic law. The banning of the war dances and alteration in the functions of the courts especially point towards a move to bring Pakistan Pashtun society towards a singular and shallow perception of Islamic law and practice.

This movement within the area towards a monolithic view of Islamic law and its imposition upon the people may seem inevitable in hindsight. Whereas in other areas the state chipped away slowly at the waqf system and the educational systems that bolstered a religious elite that could interpret and apply Islamic law, in Pakistani Pashtun tribal lands this support system never really existed (Hallaq “Can the Shari’ah be Restored?” 22). Historically, for lack of education the clergy in this region has had a somewhat limited understanding and ability to interpret Islamic law (Khan 149). This accounts for the generalizations and brevity with which this paper has treated the Islamizing actions of Islamic figures within Pashtunwali structures, as the voicing of these reforms has been equally vague in all sources. This points towards shallow and surface understandings of Islamic law being worked into the Pashtunwali.

Unfortunately and somewhat ironically, little can be done to remedy the situation. During the era of British incursions, the foundation of British schools was seen (validly) as a British ploy to indoctrinate Pakistani Pashtun children and pull down their tribal system (Khan 27, 29). Religious circles vocally advocated for the boycott of such schools, and naturally people followed as they did in all other acts of resistance to the state led by the Islamic figures of the region (Shah 4). As a result, in the decade of the first contracted effort to build British schools in the region, 1901 to 1911, literacy rates actually dropped by 0.4 percent, from 5.5 percent to 5.1 percent, in the region, with the tribal areas accounting for a considerable amount of that drop (Baha 198). “The combination of deep faith and a lack of education in general has led to mullahs having a disproportionately great influence,” an influence greatly touched by Islamist schools viewing “the shari’a […] as a well-defined, wholesome entity,” and leaving the people with no recourse to read the source material and object if they felt the urge to do so (Khan 149 and Hallaq “Can the Shari’ah be Restored?” 21). The Pakistani Pashtun region, then, looks to be dominated by one view of Islamic law in an area of growing threat and reliance upon Islamic figures to maintain the tribal system in which they reside.

The Pakistani Pashtun were able to maintain their Pashtunwali code and identity in main part due to their acceptance of Islam into the existing tribal system of legislation and adjudication. Islamic figures, serving as rallying posts and proving their merit for the stability of the society, were able to expand their law into areas untouched and shifting within Pashtunwali and to use existing institutions to support themselves. Yet they never founded separate courts, comfortable as they were, nor the institutions that were necessary to sustain fair practice of Islamic law as it is described in the introduction to this paper. It is almost impossible to establish causation, but this paper posits the logical hypothesis that the use of existing tribal institutions (an unusual practice enabled by the oddly developed nature of these tribal institutions) negated the need to establish new Islamic institutions and set Islamic law in the region on a path of acceptance of tribal customs, but also predisposed it towards the type of interpretation of Islamic law so common in the modern Islamist state (Hallaq “Can the Shari’ah be Restored?”). And now that a constant crisis of state and Islamist encroachment exists, the shifts in Pashtunwali are opening space for Islamists to hollow out the institution and fill it with Islamic law as they perceive it.

The balance between tribal and Islamic legal elements in the Pashtunwali system, and the sustenance of the values the Pakistani Pashtun depend on for life and identity, was contingent upon periods of security and/or active recognition of the limits Islamic law should occupy by Islamic figures active in the Pashtunwali systems. But now the area exists in a perpetual crisis—sometimes more physical, sometimes more mental—and there is little sign that the current batch of Islamic figures in the area have had the same attachments to or understandings of Pashtunwali as did Pir E Roshan, who acted in part for hereditary and Pashtunwali-motivated claims to power and revenge (Khan 22). In the current disorder along the Afghan-Pakistan border, when villages are displaced, Islamic figures creep along and murder jirga maliks where they can find them to ensure that the jirga may be taken over by Islamic law, not pure Pashtunwali (“Pushtunwali: Honour among them”). So long as the crisis continues, and so long as the state changes life for the Pashtun, spaces will be opened both in the halls of the jirgas and in the codes of Pashtunwali to be filled by those forces who have historically led shifts in Pashtunwali: the Islamic figures. However without any sign that the crisis of the state’s encroachment or that the trends of Islamic fundamentalism, Islamism, and poor regional education will end, it is likely that Pashtunwali will be burned out slowly of the bulk of its old concepts and the structures and identities it formed will be filled with the notions of a singular view of Islamic law. The trend towards identification of Islam and Pashtunwali will complete itself in an extreme way, and although perhaps the pride and vengeance will remain, the bulk of Pashtunwali will become synonymous with Islam and Islamic law, or the limited brand of it espoused by modern Islamists and fundamentalists. Whether some unexpected force will end this trend or whether the Pakistani Pashtun identity will collapse, will reorient, or will become synonymous and equally unstoppably attached to this infectious, new, and limited Islamic identity remains to be seen.

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