When the problems riddling Afghan society are listed – violence, insecurity, corruption, religious fundamentalism – one dominating factor is usually left out: the influence of customary law. In Afghanistan, there are three principal legal references: constitutional law, the Qur'an, and the system of customary law known as farhang, the most dominant and strictest version of which is called Pashtunwali (the way of the Pashtuns).
Originally an ancient honour code, farhang ensures the dominance of the oldest male of any household, followed by married sons, unmarried sons, and grandsons, then wives (with the youngest at the bottom). Collective decisions are taken by patriarchs in councils called jirgas, where all have to be in agreement.
This agreement includes on collaborating or not with the Taliban, co-operating with coalition forces and accepting or refusing poppy eradication in a village. Everything else is left to patriarchal discretion. Here, no one will intervene except to reinforce the application of the patriarch's rights – say, in stoning a supposedly wayward girl, or turning a blind eye to so-called "honour killings" of women.
Every act of an Afghan male's life is integrated in a form of reciprocity, in which nothing is free. Melmastia, the basic tenet of hospitality, means "I will give you shelter if you ask me to, even if you are a fugitive murderer; but, in exchange, you fight my battles." This sense of customary obligation is why so many of President Hamid Karzai's cronies remain in place and Taliban leaders remain safe.
Women are excluded from collective decision-making, as they are mere objects. Girls are literally sold upon marriage (the father is paid money for his daughter's labour and reproductive capacity) and join their husband's household. The younger the girl, the higher the price. Marriage, especially in the provinces, is routinely consummated on pre-pubescent bodies.
Yet women are precious in their own way. A family's principal "cultural capital" is its honour, which is ensured by denying women any opportunity to highlight male failings and therefore tarnish clan respectability. As a result, women must be strictly secluded and made invisible when in public, for they are personally responsible for the desire that they could ignite in schools, hospitals, parks, or markets. The all-covering burka ensures sufficient anonymity to permit women a certain amount of freedom in public space.
Every female simultaneously carries her father's and her husband's honour, and will stoically submit to all forms of violence committed in its name. This may mean dying in childbirth rather than risking the "dishonour" of giving birth in a public place, a hospital, in front of strangers.
Going to court is practically unheard of, as it would mean renouncing family practices. From the male point of view, resorting to outside police or judicial intervention would signify an inability to fight one's own battles – an admission of defeat and a symbolic castration.
This helps explain the intense corruption present in Afghan courts, where "honour" can be redeemed by bribing a judge to have a rapist or murderer released. As violence is strictly a private matter, relinquishing justice to state institutions could be an unacceptable humiliation.
Customary law is not rigid in that it is made to fit round the demands of the global economy. It has become more rigorous in its applications due to the influence of militant Islam, which seeks to use religious texts to legitimise escalating brutality, especially against women. However, farhang and privatised violence are precisely what Mohammad sought to ban through Qur'anic law, which went beyond the personal domain and instituted a code that gave some rights to women.
For example, while the Qur'an allows for a measure of female inheritance, tribal custom does not authorise it, which explains the popularity of tribal councils to resolve inheritance problems and cheat women out of their rights. Similarly, whereas the Qur'an requires four eyewitnesses as proof of adultery, mere suspicion of some unregulated, potentially sexual conduct by a woman warrants stoning under customary law.
Yet an awareness of alternatives is seeping in through the media, even in remote provinces. Iranian films and much-loved Indian TV serials, not to mention the occasional American film, influence people's expectations. Add to that the experience of having lived abroad as refugees in Pakistan and Iran. Women are increasingly demanding more from life than custom ordains.
This is especially true for those who have lived in Iran, a totally Muslim environment that allows women the freedom to study and work as well as access to adequate healthcare and family-planning. Once back in rural Afghanistan, forced into brutal marriages, many desperate women – especially returnees from Iran – resort to self-immolation. Violence and murder of women are on the increase, perpetrated by men who feel that these alternatives pose a threat to their authority.
The west imagines that religion is the central issue in Afghanistan. But the heart of the matter is the preservation of ancient patriarchal rights that go back to Biblical times, reformatted to fit the demands of globalised capitalism. Governments and international aid organisations have failed to take into consideration the role of farhang, perhaps because the power of unwritten law remains largely inconceivable in the west. But Afghanistan cannot begin to solve its many problems until it criminalises the privatised violence of this antiquated code.
Carol Mann, a social anthropologist specialising in issues concerning gender and war and runs FemAid.