Response to Quiggle

In his two compelling posts, written from a point of view one doesn’t often encounter on a legal blog, Doyle Quiggle asks “how do we replace a union of feeling (clan) with a union of words (constitution)?” It’s a question that applies well beyond Afghanistan, but Doyle speaks with special experience of that country, where for many people modern ideas of law are delegitimized by their association with ISAF/NATO forces, as well as with the “social proof” to which the Taliban enthusiastically point: “Afghan women and children killed by drone strikes; night raids; burned Korans; pissed-on dead bodies of Islamic fighters; US Special Forces running amok and killing dozens of civilians.”

In thinking about the possibilities of legal and constitutional development in Afghanistan, Doyle turns to the issue I’ve been discussing with Jan in relation to German constitutional modernization, about which we’ve invoked the spirits of von Savigny and Grimm. He turns, that is, to “the imaginative sensibility that lies at the core of the liberal rule of law” and notes how deeply it contrasts with the sensibility of the rule of the clan among ANA/ASF soldiers. “The Afghan National Army,” he writes, “has largely failed to create the imaginative mechanisms that should enable its members to transcend clan loyalty and its honor-compulsions.” Nor has it been able to provide “the genuine goods the rule of the clan provides, especially solidarity and a measure of social justice,” under the auspices of a liberal conception of law and government.

As a result, Afghan army soldiers find themselves poised against their insurgent kin, confused about their own loyalties, unstable in their identity—and deep in dishonor. To overcome this shame, some “empty their AK into their US counterparts.”

“You Americans have merely been talking to yourselves,” Doyle’s tent-mates tell him. Caught in our solipsism, we fail to appreciate the nature of a cultural divide—a divide that, at its core, is socio-legal in character. In that failure, we threaten our friendship with many people who might otherwise be part of a common effort.

Among them are the two professors in Khyber Pakhtunkhwa who commented on my first post. One of the reasons I wrote my book is to help readers well beyond the academic world appreciate why understanding their point of view is so important.

I thank Doyle for his sensitive and arresting portrait of the human stakes at play.

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