by Jennifer Brick Murtazashvili
Jennifer Brick Murtazashvili is assistant professor at the Graduate School of Public and International Affairs at the University of Pittsburgh. She recently completed The Political Economy of Customary Governance: Informal Order and State Building in Rural Afghanistan (under review), and is finalizing Land, the State, and War (with Ilia Murtazashvili), on how conflict over property rights has shaped the trajectory of the Afghan state. She also co-authored “Community Documentation of Land Tenure and its Contribution to State-building in Afghanistan” in Land and Post-Conflict Peacebuilding with J.D. Stansfield, M. Y. Safar and Akram Salam, and provides an update in this guest posting.
Conflict over land is one of the most important, yet poorly understood, drivers of instability in rural Afghanistan. The Taliban, for example, has been active in trying to establish its credibility and authority as reliable mediators of land conflict as it competes with the Karzai government for legitimacy.
The solution offered by the international community to the problem of tenure insecurity is the promotion of formal, state-backed legal titles. The chapter I authored with J.David Stanfield, Yasin Safar, and Akram Salam, “Community Documentation of Land Tenure and Its Contribution to State-Building in Afghanistan,” suggests that customary forms of land titles may be more effective in promoting the legitimacy of the state than by simply issuing formal government deeds.
The state has very little credibility with most Afghans as it is largely viewed as a source of corruption rather than governance. This is not to say that Afghans do not want government. On the contrary, many Afghans are in demand of government but want to have little to do with formal state authority as it is currently exercised.
Thus, current efforts to promote property rights by promoting an extension of state authority in Afghanistan are not viewed by many Afghans as a viable solution. Instead, by making them more dependent upon a corrupt state, property rights based on state-issued legal titles may threaten, rather than enhance, tenure security in Afghanistan. This is largely due to the fact that many Afghans, especially those in rural areas, rely primarily upon customary mechanisms for the mediation of land disputes. Furthermore, as Doug Batson suggests in his chapter in the volume, formal land titles often fail to adequately account for forms of customary land tenure.
One of the reasons efforts to extend state authority in rural Afghanistan have struggled, is because state-builders (both in the international community and some in the Afghan government) view the relationship between customary authority and the state in zero-sum terms.
While some analysts of Afghanistan have argued that that customary governance has withered away, my own fieldwork has shown that such structures remain quite strong but have changed over time to adapt to new circumstances in the country. Due to war and displacement, customary structures are actually more representative and democratic than they had been in the past.
Immeasurably important? The development discourse eyes the rule of law
by Rhodri C. Williams
Its been a busy 18 months in my new rule of law gig, and an eye-opening time to boot. While the range of issues falling under the rule of law umbrella is impressive in principle, I have found myself inevitably stove-piped in practice, with my housing, land and property (HLP) interests finding expression mainly in sporadic consultancies, and justice sector reform issues suddenly front and center in my professional life. Not that I am complaining, mind you.
Judicial reform is just another lens on the whole muddle of good intentions and mixed results I was approaching earlier mainly from a humanitarian perspective, and a change of perspective can be refreshing. I also expect that as I proceed down the rule of law road, I will have opportunities to unpack more and more of my HLP baggage along the way. But for now, it is very interesting to have at least a back row seat on the evolving definition of rule of law and how it relates to broader development assistance efforts.
Recently, a colleague (who I will hat-tip if she likes this post) sent me links to a pair of pieces that helped to crystallize some of the recent debates in this area in my own mind. The first was to a recent Washington Post op-ed by Gary A. Haugen of the International Justice Mission. Haugen describes the explosion of private security companies in the developing world and the extent to which this has resulted in a monopoly on protection from violence for the rich:
Interestingly, this piece also exposes the great home truth about the ‘civil and political’ rights traditionally protected by judiciaries. Exclusive proponents of such rights (in countries ranging from the US to Sweden) have often lauded them for being ‘negative’ (in the sense that they involve government duties to refrain from taking actions), and therefore ostensibly cost-free to taxpayers.
This in contrast to social and economic rights, which are ‘positive’, entailing affirmative government actions (and expenditures), and therefore often decried as an unwarranted intrusion in the inherent right of governments to roll the pork barrels toward whichever constituency they choose. In the present case, the lurch toward private security has at least laid bare the extent to which courts actually represent a highly expensive ‘positive’ guarantee necessary for the equitable protection of any kind of rights.
Continue reading →
3 Comments
Posted in Commentary
Tagged access to justice, ADR, customary law, development, FBA, ICCPR, ICESCR, ICG, ILAC, judiciary, MDGs, rule of law