Islam, Constitutionalism, and the Nation State in Afghanistan: An Interview with Faiz Ahmed

In January of 2004, following weeks of debate by a Loya Jirga, an Afghan variant of a national assembly, the Islamic Republic of Afghanistan adopted a constitution. As boldly declared in its opening chapter, Afghanistan’s 2004 constitution pledged to create “a prosperous and progressive society based on social justice, preservation of human dignity, protection of human rights, realization of democracy, attainment of national unity as well as equality between all peoples and tribes.” It also stipulated that no law would contravene the tenets and provisions of Islam. At the time, outside observers noted with great fanfare the avowed synthesis of republican and Islamic principles contained within the constitution, and its prescription of laws which melded Islam and democratic values.

Afghanistan Rising. Source: Harvard University Press

As Faiz Ahmed, Associate Professor of History at Brown University, shows in his book, Afghanistan Rising: Islamic Law and Statecraft between the Ottoman and British Empires, the 2004 constitution was not the inception of Afghan constitutional history. Nor was the model of state-shariʿa interaction on display there the only one attested within this history. Ninety years before the adoption of the 2004 charter, a Loya Jirga had approved Afghanistan’s first written constitution, as well as scores of supplementary legal codes produced by a multinational drafting commission assembled by Amir Amanullah Khan, the king of Afghanistan from 1919 to 1929, whose project of Islamic legal reform and creativity is at the heart of this book.

In order to understand Amanullah’s project of legal codification, Ahmed situates the history of modern Afghanistan in a context of trade, interimperial rivalry, and intellectual and cultural exchange prevailing between today’s Central Asia, South Asia, and the Middle East from the 17th-20th centuries. The book recounts the birth of the Afghan state out of the ashes of the Mughal and Safavid empires, and traces, from the mid-19th century, increasing official contacts between the Afghan leadership and the Ottoman Empire, which at this time embarked on an eastward diplomatic and economic push to counter the gains made by European trading companies and states and to strike its roots deeper into Central Asia.

At the center of this history are not militant adventures and jihads, but the networks and content of a broader series of crossborder associations and relationships he designates as “Islamic legal modernism” and “juridical Pan-Islamism.” Both processes are rooted in the publication and study of Islamic legal and administrative literature by Muslim scholars and lawyers from the Balkans to Bengal. Within this framework, Ahmed considers the Tanzimat reforms, the Ottoman Constitution of 1876, and the Ottoman Civil Code (also known as the Mecelle) as leading examples of state-directed projects of Islamic legal modernism in the Ottoman domains. Such projects had unexpected ramifications outside of Ottoman territories, sometimes traceable through the itineraries of representatives of the Ottoman state. The impact of these projects, along with a range of other Ottoman initiatives, was largely felt via the presence of Ottoman experts and experts from the British Indian domain, who had made their way to Kabul in search of employment over a period of about 40 years preceding the reign of Amanullah. These professionals constituted an Ottoman and Indian “rule of experts” in Kabul, assisting the three generations of Afghanistan’s Muhammadzai Amirate (1880-1929) analyzed in this book in their various projects of centralization and reform.

Combining episodes of elite diplomacy and royal family politics, the grassroots itineraries of pilgrims and students, and Afghan acclaim for the institution of the Ottoman caliphate, which mounted from the last quarter of the 19th century and peaked during World War I, the book converges upon the years following Afghan independence in 1919 and the legal reforms of King Amanullah Khan (1892-1960). The young scion of the Muhammadzai dynasty, after casting off the yoke of British protectorate status, launched immediately into a series of wide-ranging reforms. Among these was the drafting of the Nizamnama (translating as legal “protocols” or “codes” from Persian and Pashtu), which included over seventy originally-crafted statutes, manuals, and administrative regulations. At the heart of the Nizamnama was the Qanun-i Asasi (the “Basic Code”), Afghanistan’s first constitution. As Ahmed points out, the provisions in the Qanun-i Asasi calling for a rule by shariʿa were more than lip-service, or Islamic “window-dressing,” but actually contained legal precedent drawn from Islamic legal sources.

Afghanistan Rising tells a story of a modern Islamic project of statecraft and legal synthesis, undertaken against a background of broader regional connections. The early legal history of Afghanistan is an account of an Islamic politics that did not, as in contemporary cases, grasp for imported European legal codes. Nor did it constitute a case of Salafi or “Wahhabi” ideologies of Islamic reform. Rather, King Amanullah’s project emerged out of a rich history of what Ahmed calls “interislamic” cultural exchange and modern visions of politics, including a unique adaptation and application of the shariʿa to the form of the modern nation-state.

–Joshua Milstein

Conference Report: Russia’s Global Legal Trajectories: International Law in Eurasia’s Past and Present (University College London, 16-17 February 2018).

On the 16th and 17th of February 2018, the School of Slavonic and East European Studies (SSEES) at University College London (UCL) hosted an international workshop on “Russia’s Global Legal Trajectories: International Law in Eurasia’s Past and Present”. Organized by Dr. Philippa Hetherington (UCL) with the generous support of the British Academy for Arts and Sciences and Pushkin House, the workshop was dedicated to the history of legal issues in Russia from the Russian Empire, Soviet Union and Russian Federation. The workshop lasted for two days and consisted of 6 panels and a total of 14 speakers. It united historians with legal scholars, which provided a rich basis for discussions of issues of legality at various points in Russian history.

Acts of Faith: Talking Religion, Law, and Empire with Dr. Anna Su

Dr. Anna Su

Religious freedom is back in the news. Just last week, the State Department released its report on religious freedom for 2017. Speaking at its unveiling, Secretary of State Rex Tillerson pledged solidarity with a diverse group of persecuted religious groups: Iranian Baha’is and Christians, Chinese Uighur Muslims and Tibetan Buddhists, Pakistani Ahmadiyya Muslims, Saudi Arabian Shia Muslims, and Turkish non-Sunni Muslims, among others. Government officials did not miss the opportunity to extol the US’s “long, strong tradition”  of promoting religious freedom abroad.

No sooner than these announcements were made, reporters began pointing out the gap between rhetoric and reality. In a series of blistering questions, journalists underscored inconsistencies in the administration’s stated prioritization of persecuted Christian refugees; the restrictions on travelers from several majority-Muslim countries; the politicization and selectivity of its interventions; and the absence of any self-reflexivity, particularly in relation to spikes in hate crimes directed at American Muslims. China promptly followed suit, questioning America’s moral authority on religious freedom amid white nationalist rallies in Charlottesville.

The history of America’s interest in religious freedom abroad is the focus of Dr. Anna Su’s first book, Exporting Freedom: Religious Liberty and American Power (2016). As Su shows, the US has a long history of intervening in countries on behalf of religious freedom. Su tracks the development of official government policies toward religious freedom: first as part of its “civilizing mission” in the Philippines from 1898, then in the democratization of Japan after World War II, and finally through the championing of human rights in Iraq and elsewhere. Working at the intersection of history and law, Su is currently Associate Professor in the University of Toronto’s Faculty of Law. She previously earned an SJD from Harvard Law School, and worked as a law clerk for the Philippine Supreme Court and a consultant to the Philippine government negotiating panel with the Moro Islamic Liberation Front.

Human Rights and the Global South: A Conversation with Steven L. B. Jensen

Dr. Steven L. B. Jensen

Human rights are facing perhaps their greatest challenge yet. After a failed military coup in July last year, Turkey’s President Recep Tayyip Erdoğan has led a purge of the country’s central institutions. A much-contested referendum in April only expanded Erdoğan’s stranglehold on the government. Over a similar timeframe, Erdoğan’s Filipino counterpart, Rodrigo Duterte, has spearheaded a devastatingly brutal antidrug campaign, sanctioning the extra-judicial killing of thousands of suspected drug users and sellers. In Egypt, President Abdel Fattah el-Sisi has imprisoned members of the political opposition, arrested human rights activists, and outlawed many aid organizations. Meanwhile, the United States—traditionally considered human right’s earliest and greatest champion—has seen the election of President Donald Trump. According to a tally compiled by Amnesty International, in just one hundred days in office, Trump threatened human rights in at least as many ways.

Viewed from today’s perspective, it might seem like it’s only recently that the US has ceded global leadership on human rights. But, as Dr. Steven L. B. Jensen shows in his book The Making of International Human Rights: The 1960s, Decolonization, and the Reconstruction of Global Values (2016), the history of human rights was never simply a story of American or Western hegemony. Moving the locus of study to Jamaica, Ghana, the Philippines, Liberia and beyond, Jensen argues that human rights were as shaped from within the Global South as they were from without. In Jensen’s words, actors from the Global South “gave a master class in international human rights diplomacy to both the Eastern and the Western actors.”

Many scholars struggle to connect with non-academic audiences. In his work and in his writings, Jensen straddles the border between academia and international policymaking with comparative ease. Currently a researcher at the Danish Institute for Human Rights, Jensen is the author and editor of multiple books and articles. Prior to completing his PhD at the University of Copenhagen, he worked in international development: first at the Danish Ministry of Foreign Affairs’ Department of Southern Africa, and later for the Joint UN Programme on HIV/AIDS (UNAIDS) in Geneva. His PhD thesis was published as The Making of International Human Rights last year. Since then, he’s been on something of a roll. Most recently, his book received the Human Rights Best Book Award and the Chadwick Alger Prize for the best book on international organization from the International Studies Association.

The Toynbee Prize Foundation was lucky enough to chat with Jensen during a recent visit to Cambridge, Massachusetts. Jensen was in town to attend a workshop on socioeconomic rights convened by Professors Samuel Moyn and Charles Walton at Harvard Law School. Jensen spoke about human rights’ origins in the Global South, how exactly he came to be known as the “Jamaica guy,” and what the future holds for human rights scholarship.

Aden Knaap

CFP: Fascism and the International: The Global Order Today and Tomorrow (Mexico City, June 18-20, 2017)

For readers interested in the international dimensions of fascism, here’s an exciting (and topical) call for applications for an interdisciplinary workshop  to be held at the Museo de Arte Moderno in Mexico City: Paper proposals for this workshop on the international dimensions of fascism are warmly invited from scholars, artists and activists working in and across…

Did Decolonization Foster Human Rights? A Review of Steven Jensen

H-Soz-u-Kult has just posted a review (in German) of Steven Jensen‘s new book, The Making of International Human Rights: The 1960s, Decolonization, and the Reconstruction of Global Values by Annette Weinke of the Friedrich-Schiller-Universität Jena. Jensen’s book seeks to intervene in debates about the origins of modern human rights by placing them neither in the…

A New Deal for the Nuremberg Trial? Discussing the History of Crimes Against Humanity with Elizabeth Borgwardt

More and more social science research suggests that polities recovering from eras of mass atrocity do best with strategies that are both forward-looking and backward-looking. Forward-looking initiatives may include constitutional revisions, support for non-governmental organizations, and amnesties; backward-looking devices may include summary executions, war crimes trials, or truth commissions. While few would argue that we are in the twilight of impunity, scholars who study the generation and diffusion of norms look to recent settlements in Argentina and Columbia that stress increased accountability for past atrocities. The conviction of former Chadian dictator Hissène Habré by a Senegelese court for crimes against humanity and war crimes in early 2016 might be a harbinger of future, more regionally-grounded processes of international justice. Even more recently, the conviction of an ISIS militant for the destruction of ancient documents and religious sites in Mali has suggested an expansion zone for war crimes that would take in cultural destruction.

Critics of liberal internationalism, by contrast, are heralding the death of the human rights idea in light of the recent U.S. presidential election, Brexit, and the resurgence of ethnic nationalism in the West and elsewhere. Atrocity crimes seem to be a growth industry and botched humanitarian interventions are also doing a brisk business. These critics also ask how institutions such as the ICC and the UN tribunals for the Former Yugoslavia and Rwanda could have any legitimacy at all, as they are dominated by Western elites, with judges who are vetted and qualified to preside only after receiving indoctrination at Western law schools, while defendants are inevitably drawn from smaller, weaker countries, some of which are now turning their backs on international institutions in general and the ICC in particular. Law, skeptics say, has been unmasked as really “just politics;” that is, only capable of generating scenarios where illegitimate power expresses itself by means of adulterated law.

Convincing one side or the other of the moral legitimacy of today’s international tribunals may indeed be a rather fruitless exercise. In the meantime, however, it may be helpful to ask a more historically-informed set of questions, such as how some of the foundational ideas in international justice from the 19th century and before came to be institutionalized in the 20th century, or how the very format of trials came to be added to the spectrum of responses to various kinds of atrocities against civilians, or indeed how the idea of what might count as a “crime” in international law came to be debated and refined.

These are the questions at the heart of the research agenda of Elizabeth Borgwardt, an associate professor of history and law at Washington University in St. Louis, and a permanent faculty associate of the Center for American Studies at the Ruprecht-Karls-Universität Heidelberg. Borgwardt also recently served as the Richard and Ann Pozen Visiting Chair in Human Rights at the University of Chicago. Readers will probably best know Borgwardt as the author of the 2005 monograph A New Deal for the World: America’s Vision for Human Rights, published with the Belknap Press of Harvard University Press and co-winner of the Merle Curti award for best book in Intellectual History and of the Stuart Bernath Book award for best first book in U.S. foreign relations.

Now considered to be field-defining research in the then-novel specialization of human rights history, Borgwardt examined how the 1941 Roosevelt-Churchill Atlantic charter served as a kind of ideological blueprint for many of the young lawyers negotiating the draft charters of various wartime international institutions, notably the 1944 Bretton Woods agreements, the 1945 United Nations charter, and the 1945 Nuremberg charter. She explored how these new institutions were meant to generate a world order that would somehow “advance” human rights and, for the US officials involved, one which would entrench and extend U.S. influence. A major theme of New Deal for the World was also the role of unintended consequences, in that a variety of constituencies seized upon the vague and inspirational rhetoric in the Atlantic Charter and sought to use it for their own ends.

Now, however, Borgwardt is interested in a different set of questions related to human rights politics and ideas: how did “human rights” become a concept that even the most heinous regimes feel that they need to buy into, if only to pay it lip service? Why did ideas about sovereignty and individual accountability articulated in a courtroom in provincial Germany go on to affect larger systems of international justice? The answer to these questions — grounded, in Borgwardt’s case, in her background as both a lawyer and a historian — cannot but interest us in a world that continues to be scarred by human rights violations, both domestic and international.

The Toynbee Prize Foundation’s Executive Director, Timothy Nunan, recently had the opportunity to sit down with Professor Borgwardt during a visit to Harvard University to present an excerpt from her new manuscript, with the working title of The Nuremberg Idea: “Thinking Humanity” in History, Law & Politics, under contract with Alfred A. Knopf. We have reproduced below an edited transcript of that conversation.

CfP: Law and Colonial Violence Workshop at Queen Mary University London

Queen Mary University London, Cambridge University, and the European University Institute have jointly issued a call for proposals for a workshop on the subject of “Law and Colonial Violence” worldwide, to be held at Queen Mary University London on February 14, 2017. The call provides the following description: Now more than ever, the relationship between…

Workshop: “Global Legal Regimes: Beyond Imperial Frames” (Queen’s University, Ontario, Canada, 20-21 April, 2017)

For readers of the Global History Blog interested in legal history in global context, here’s a recent call for paper for a workshop titled “Global Legal Regimes: Beyond Imperial Frames” at Queen’s University in Kingston, Ontario that should be of interest: How do the concepts and methods of global history illuminate, enrich and complicate legal history scholarship? What are the…

Workshop: “Global Legal Regimes: Beyond Imperial Frames” (Ontario, Canada, April 20-21, 2017)

Interested in the legal history in global context? Here is a recent call for workshop from Global History Initiative, Queen’s University titled “Global Legal Regimes: Beyond Imperial Frames” and taking place in Ontario, Canada on 20-21 April 2017. The call explains: How do the concepts and methods of global history illuminate, enrich and complicate legal history scholarship?…