The Pulse | Politics | South Asia

The Rule of Law in Afghanistan Failed Long Before the Taliban’s Triumph

To be rightfully concerned about the present is not an excuse to distort the past.

Nearly five years after Taliban insurgents toppled the Islamic Republic of Afghanistan, calls still ring out for a return to the rule of law. United Nations officials contend that Taliban governance “precipitated the collapse of the rule of law and judicial independence in Afghanistan.” Amnesty International pleads for the Taliban to “reinstate a formal constitutional and legal framework and the rule of law.”

The idea that Afghanistan lost the rule of law in 2021 is compelling. It is also a fantasy. The United States, and the international community more broadly, abandoned rule of law in Afghanistan long before the Taliban returned. 

The U.S.-backed regime that the Taliban defeated was one of the most corrupt states on Earth. And within that regime, police and courts were consistently ranked among the most corrupt parts. For example, a major 2018 survey found “corruption within the local security and justice sector in Afghanistan remains a key driver of insecurity in the country.” The United States’ willingness to not only tolerate but also perpetuate corruption and lawlessness proved essential for the Taliban’s success.

What of the U.S. role? Here, too, reality and rhetoric clash. Government officials and outside commentators routinely stress the idea that progress in law and justice was occurring and would have continued. As my recent work in Law & Social Inquiry shows, this is not the case.

At first, the U.S. envisioned the new Islamic Republic of Afghanistan as committed to the rule of law. Yet, initial efforts were outsourced to Italy and achieved little. Worse still, they backed a strong presidency and an unrepresentative parliamentary system that offered a decidedly weak foundation for a state built on the rule of law. 

As the Taliban insurgency gathered strength in the mid 2000s, Afghan government corruption became a key concern. Courts were expensive, unprofessional, predatory, and generally ineffective. While ordinary people suffered, impunity became the norm for the powerful. This prompted U.S. President George W. Bush to pledge to “replace the rule of the Taliban with the rule of law.” 

Initial U.S. efforts focused on legislative reform, capacity building, and increased public engagement. Yet, they failed to stem the Taliban insurgency or improve justice. Aid programs focused on improving knowledge and reforming laws, but bad laws and insufficient knowledge were not the real problems. Those were law and governance rooted in injustice.

U.S. President Barack Obama promised to fix the deteriorating situation in Afghanistan. The so-called Afghan Surge (2010–2014) sought to improve law and order and support lasting military gains. The surge poured in vast resources but on a short timeline to defeat the Taliban and establish a stable, democratic Afghanistan. In doing so, Obama went beyond Bush in trying to work directly with powerful tribal authorities, who had long maintained order throughout much of the country. To counter lingering security challenges, the military itself became directly involved in rule of law aid.

The practical results, however, were profoundly disappointing. Resources mattered little absent a commitment to rule of law ideals. Non-state justice actors were hesitant to cast their lot with the internationally backed regime. Military units faced the same chronic problems of insecurity and inability to transform rule of law programing into rule of law realities. 

After 2014, however, a subtle but profound change happened. The U.S. still officially backed the rule of law, but innovation ceased. Instead of trying to innovate or push the Afghan government toward real reforms, the U.S. continued to back the same policies and programs that had already failed. For instance, Surge-era USAID program implementers explicitly noted the pervasive corruption alongside “weak political support for rule of law reforms,” and “a lack of willingness…to support and adopt reforms.” Nevertheless, the next round of rule of law programing set a goal of “combating corruption by empowering relevant........

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