International Review of Law and Economics 37 (2014) 108120

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International Review of Law and Economics

PashtunwaliLaw for the lawless, defense for the stateless

Bruce L. Benson a, , Zafar R. Siddiqui b,1
a b

Department of Economics, Florida State University, Tallahassee, FL 32306, United States Askew School of Public Administration and Policy, Florida State University, Tallahassee, FL 32306, United States

a r t i c l e

i n f o

a b s t r a c t
Despite a large and growing literature on systems of law without coercive central authority, the overwhelmingly dominant view remains that law, as a public good, must be produced by the state. Defense against attempts to subjugate a community is even more widely viewed as a public good and therefore a necessary function of the state. This case study of the Pashtunwali the customary law followed by the ethnic Pashtun tribes in Afghanistan and Pakistan illustrates that both law and community defense can be effectively produced without the institutions of a state. The incentives created under Pashtunwali have provided the Pashtun with a decentralized system for maintaining order within and between the tribes for several centuries without the authority of a coercive state. In addition, they have generated a system of spontaneous decentralized defense that has allowed the Pashtun to retain/regain their independence from the states that have tried to colonize or subjugate them for centuries. 2013 Elsevier Inc. All rights reserved.

Article history: Received 14 October 2012 Received in revised form 26 June 2013 Accepted 17 July 2013 Keywords: Customary law Pasthunwali Retribution Restitution Asylum Mediation Badal Thega Melamastya Nanawatey Panah Jirga

1. Introduction The Pashtunwali or way of the Pasthun the customary law1 followed for centuries, and still followed by ethnic Pashtun 2 tribes which straddle the mountainous region between Afghanistan and Pakistan is examined, focusing on four main provisions

of this law: Badal, Thega, Melamastya and Nanawatey (including Panah, an element of Melamastya that links it to Nanawatey).3 Widespread acceptance of these provisions provides the Pashtun with a relatively effective decentralized process for maintaining order within and between the tribes in the absence of an authoritarian state,4 while also supporting their centuries-old and largely successful efforts to maintain their independence from state authority. This success includes recent efforts to impose

Corresponding author. E-mail addresses: bbenson@fsu.edu (B.L. Benson), zrs07@fsu.edu (Z.R. Siddiqui). 1 Pospisil (1971) labels legal arrangements with rules and procedures imposed from the top down through command and coercion as authoritarian law, while a system of rules and procedures that spontaneously evolve from the bottom up through voluntary interaction is customary law. Customary rules are described by Hayek (1973, pp. 9697) who explains that many issues of law are not whether the parties have abused anybodys will, but whether their actions have conformed to expectations which other parties had reasonably formed because they corresponded to the practices on which the everyday conduct of the members of the group was based. The signicance of customs here is that they give rise to expectations that guide peoples actions, and what will be regarded as binding will therefore be those practices that everybody counts on being observed and which thereby condition the success of most activities. Indeed, customary behavioral rules in a community include both immemorial custom and evolving practices and usage. Customary governance procedures correspond to Harts (1961) secondary rules or institutions of recognition (shaming, ostracism, retribution, restitution), adjudication (mediation, arbitration), and change (contracting, adjudication, emulation), but they also evolve spontaneously without top down coercion (Benson, 1989, 1990). 2 Other common spellings include Pakhtun, Pukhtun, and Pathan. 0144-8188/$ see front matter 2013 Elsevier Inc. All rights reserved. http://dx.doi.org/10.1016/j.irle.2013.07.008

3 Badal is an obligation to seek proportional retribution. Thega is a temporary truce declared by a Jirga (an assembly of tribal elders). Nanawatey, can be described as repentance for offenses, sometimes accompanied by a request for asylum, Panah. Melmastiya refers to hospitality or welcoming the guest, including Panah, protecting the guest even at the cost of ones own life. 4 Weber (1964, p. 154) denes a state as a monopoly on the legitimate use of violence in a given territory. A consistent but perhaps narrower denition (Claessen, 1996, p. 1255) is an independent, centralized socio-political organization for the regulation of social relations in a complex, stratied society living in a specic territory, and consisting of two basic strata, the rulers and the ruled, whose relations are characterized by political dominance of the former and tax obligations of the latter, legitimized by an at least partly shared ideology... (also see Stringham & Miles, 2012). In this context, the inuence of Pashtunwali varies between the Pashtun living in urban areas and those living predominantly nomadic lives in the mountains. Large landowning and urban Pashtun are referred to as qalang or the tax group; whereas the nomads are often characterized as nang or the chivalrous group (Ahmed, 1976). As explained below, honor and generosity (chivalry) are key elements of customary law.

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government on the Pashtun by the British who attempted to colonize the territory, the Pakistani state, and the Russian-backed (and probably the NATO/US-backed) government in Afghanistan.5 In other words, this decentralized system has produced both law and defenseprobably the two services most widely characterized as public goods. The overwhelmingly dominant view (assumption) in both the legal and economics literatures is that law and defense are public goods requiring production by coercive government. While stateless systems of defense have attracted very little discussion in these literatures,6 the view that states must be the source of law continues to dominate despite a growing literature on stateless production and enforcement of rules and maintenance of order.7 Therefore, the economic underpinnings of four key provisions of Pastunwali are examined below in order to explain how the Pashtun have maintained both order and independence without a coercive state. This is a positive analysis of the institutionalized incentives underlying a long history of internal order and community defense.8 Aspects of this system that are not directly relevant to these two issues are not considered. Furthermore, no normative conclusions about the system or its rules are intended. The primary purpose simply is to illustrate that the assumption that provision of these public goods require centralized coercive power (i.e., a state) is not always appropriate. Under some institutional environments, incentives for individuals and groups to spontaneously cooperate in the provision of these services arise without employing the coercive power of the state. This analysis is informed by descriptive research from Anthropology, History, International Relations, International Security and other academic disciplines, information from British accounts of their colonization efforts, and popular press discussions of current events. Importantly, multiple interviews of people from Pakistan with intimate knowledge of Pashtun tribal life were also conducted.9 A brief description of the Pashtun tribes and the area they occupy is provided in Section 2, with special attention to the

Federally Administrated Tribal Areas (FATA), the focus for much of the discussion of current applications of Pashtunwali. Section 3 explores the four key provisions of Pashtunwali that support their non-centralized system of legal orderBadal, Teega, Melamastya (including Panah), and Nanawatey. The economic rationale behind these provisions is also discussed, and their similarities to provisions in other customary law systems are noted. Section 4 explains why these same provisions provide the incentives that underlie centuries of effective resistance by the Pasthun to colonization and subjugation. Conclusions are offered in Section 5. 2. The Pashtun and FATA The Pashtun tribes inhabit one of the most inhospitable terrains in the world10 a forbidding landscape of towering mountain ranges, narrow valleys and rocky barren wasteland.11 This area includes the FATA discussed below, and much of the rest of western Pakistan, as well as roughly half of Afghanistan, particularly in the south and east.12 The map in Fig. 1 (adapted from Curtis and Phillips (2007)) shows the Pashtun tribal areas on both sides of the Durand Line (the boundary line that the British created between Afghanistan and Pakistan which split the Pashtun population between the two states). Pashtun in sizable numbers also live in Pakistans urban areas, but the focus here is on the predominantly rural Pashtun. In fact, the primary focus is on the Pashtun in the FATA.13 In this context, it must be noted that this label actually is a misnomer, as these tribal areas have never been effectively governed or administered by any Pakistani regime (or the

5 Virtually all of the press coverage and NATO/U.S. reports about the war in Afghanistan focus on the role of religious beliefs of the Taliban and other insurgents. We do not deny the importance of religion in the conict, but we do not examine this issue here, choosing instead to emphasize the much less widely recognized and understood consequences of Pashtunwali. 6 There is a substantial anthropological literature on inter- and intra-tribal warfare, but the focus here is on the tribes resisting outsiders, a topic that has not attracted much attention even in anthropology. Scott (2009) is an important exception. He demonstrates that Zomia in upland Southeast Asia have resisted rule by states for thousands of years. Stringham and Miles (2012) expand on Scotts work. While the explanations offered by Scott and StringhamMiles for the long history of effective resistance by the Zomia appear to apply to the Pashtun too, as explained below, our focus is on the key aspects of customary law that simultaneously provide processes for maintaining internal order and for effective defense. 7 The impetus for the growing interest in studying actual cases of order without the state (as opposed to theoretical analysis of the potential for stateless order) in the legal literature is often traced to Ellickson (1989, 1991), while Benson (1988, 1989, 1990) and Greif (1989, 1993) have been suggested as initial stimuli for similar studies in economics. However, several other examinations of such arrangements appeared in the legal and economics literatures before (e.g., Rothbard, 1970, 1973; some of the contributions to Tullock, 1972, 1974; Friedman, 1973, 1979; Anderson & Hill, 1979; Landa, 1981; Berman, 1983; Trakman, 1983). A sampling of the growing literature is reproduced in Stringham (2007), and Powell and Stringham (2009, pp. 1741) offer a review of much of it. Fink (2012) also reviews some of the relevant literature. There is an extensive anthropological literature on customary law, of course, some of which is cited below. 8 Pashtunwali, including some of the provisions of law discussed here, has also recently attracted attention, but from a normative perspective with authors considering ways to reduce the level of violence and improve treatment of women (e.g., Ginsburg, 2011; Wexler, 2011). 9 In particular, valuable information regarding Pashtunwali resulted from detailed interviews a member of a family of tribal elders in the Mohmand tribeone of the largest tribes in FATA.

10 It is important to recognize this for reasons suggested by Scott (2009) and discussed below. 11 They have occupied the area since before recorded history. 12 Almost half the population of Afghanistan is Pashtun, and some are much more involved in the Afghan government than are the FATA Pashtun with the Pakistani government. Indeed, the current Afghan President is Pashtun and there was a Pashtun Kingdom in Afghanistan after 1747. However, The Kingdom of Afghanistan was an Empire of the Pashtuns over the other territories and ethnic groups; the role of its King and government was only to govern the foreign, non-Pashtun territories it had captured, but not the Pashtun territories themselves. The internal affairs of the Pashtun tribes were solely a matter for their own chiefs and tribesmen, not of the king or government. . .. (and these tribes applied) Pasthunwali, or the usage of the Pashtuns (Omani, 2007). The rst King to make a serious attempt to centralize power and create a strong kingship was Amir Abdur Rahman (18801901). He also tried to impose Islamic law and established Sharia courts. In his attempt to establish central authority over criminal law beatings and torture were common practice, both as part of interrogations and as punishment. Prisons, which had no role under Pasthunwali, were created. Heavy taxes on the poor agriculturalists, craftsmen, and merchants were imposed, while money was also conscated from the wealthy so the Amir could pay his army; this drove away trade and stied business. Revenues actually declined, as resistance was widespread and it continued to intensify after his death in 1901. One of his successors to the throne was assassinated, for instance, and ultimately in 1925 a widespread uprising by the Pashtun mountain tribes drove the sitting king into exile. The Taliban, who ruled in Afghanistan before the NATO/U.S. invasion, are also Pashtun. They rose to power after the war against Russian occupation. They had been one of the mujahideen armed and supported by the U.S. and other western powers to ght against the Russians and their puppet government. Once they came to power, the Taliban also attempted to impose Islamic law within Afghanistan. The point of this discussion is that for more than a century Afghanistan has been subject to repeated internal attempts to centralize power and impose Islamic law and this process is still playing out. NATO/U.S. efforts to establish aspects of western law (e.g., democracy) are also underway. Therefore, the focus of the following presentation is on the FATA Pashtun who have been relatively, although certainly not absolutely, free from such efforts. In addition, as noted above, interviews that inform our analysis primarily reect direct knowledge of a major tribe in the FATA, and we cannot be positive that this information also characterizes Afghan Pashtun after the turmoil of the last century plus. It may, of course, and almost certainly does for much of the rural nomadic population. Indeed, Ahmed and Zahori (2013) contend that: Even in Kabul, one of the most liberal cities in Afghanistan, many young men and women . . . consider democracy a tool of the West. And the vast majority of Afghans still rely on tribal justice, viewing the courts as little more than venues of extortion. 13 See note 12.

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Fig. 1. Areas of Pashtun concentration in Afghanistan and Pakistan.

British Colonial government before Pakistans independence).14 In fact, the Civil and Criminal Code of Pakistan does not apply in the FATA, even nominally (Ginsburg, 2011). Indeed, the FATA are often referred to as lawless territory.15 The Pashtun in this area are ferociously independent, rejecting state authority, but not lawless. The geographic location of the Pashtun tribal area has made it the Indian subcontinents entry point for successive invaders over thousands of years. Various invaders also have repeatedly tried to subjugate the Pashtun. The Aryans invaded the Indian subcontinent through Pasthun territories around 500 BC, followed by Cyrus the Greats Achaemenian invasion, Alexander the Greats GrecoScythian invasion during 324320 BC, and then the Mauryans. The Mauryan empire attempted to rule the area for more than a hundred years, 313232 BC, before giving way to GrecoBactrians during 185190 BC and then to the Sakas in 97 BC. Later waves of invaders by Parthians, Kushans, Sassanians, White Huns and Turks followed. Before the British Colonial Empire reached these tribes in the early nineteenth century, there also were attempts at control by Turkish Mogals who claimed the Indian Subcontinent for a good part of the second millennium. Indeed, as Montagno (1963, p. 622) states, The Afghan-Northwest Frontier Areas have seen perhaps more invasions in the course of history than any other area in Asia. Despite these repeated invasions, however, history shows that any attempt to impose state authority on the Pashtun has been viewed by the tribal members as subjugation and slavery, a condition considered to be worse than death by a Pashtun.16 Thus, outsiders claiming control over the area have either allowed the Pashtun to government themselves (e.g., as Pakistan does with the tribes in FATA), perhaps claiming authority but actually having little control, or they faced increasing resistance and ultimately withdrew. Even feuding tribes have united to resist attempts at subjugating

the Pashtun people, and they ght ferociously until they expel the invaders. The British Empire colonized the Indian subcontinent for over one and a half centuries, and made several unsuccessful attempts to subdue the Pasthun. Eventually they gave up, and adopted a policy of Masterly Inactivityessentially leaving these tribes to their own internal system (Barthorp, 1982). The lack of British dominance is illustrated by the fact that frequent tribal raids into British-ruled areas were always a major problem for colonial administration (Lawson, 2008). After the separation of tribal area with the Durand Line, Frontier Crime Regulation (FCR) was introduced by the British in an attempt to exercise some control by using political agents (Maliks) and tribal elders, while leaving internal legal issues to the Pashtun - the system has been continued in FATA by the successive governments of Pakistan.17 As a result of this arrangement, a political agent, with the help of tribal elders, presumably manages external relations and Pashtunwali provides the mechanism for tribal governance and daily affairs. Despite the political division between two states, the AfghanPakistan boundary has remained extremely porous and Pashtun move between the two nations with considerable ease (Perlez & Shah, 2009).18 Much of the area on the Pakistani side of the border has been ofcially designated as FATA. A map of showing the FATA appears in Fig. 2 (from http://upload.wikimedia.org/ wikipedia/commons/c/c2/FATA). These Agencies correspond, roughly, to geographic boundaries between different tribes, but the actual tribal territories are overlapping, with blurred boundaries due to difcult terrain as well as movement of nomadic sub-tribes and/or clans within the area. Furthermore, about a dozen major tribes, each with several sub-tribes, clans, and sub-clans, inhabit the area. Mohmand, Utmankhel, Tarkani and Sa are the major tribes in the northern most Agencies, Bajaur and Mohmand, while Afridi, Shilmani, Shinwari, Orakzai are in both Khyber and Orakzai Agencies, and Turi, Bangash, and Masozai inhabit Kurram.19 Similarly, Waziri is the major tribe in both North and South Waziristan, but Mehsuds and Dawars are also important. Pasthun outside the urban areas are predominantly agriculturalists. There are some areas of sedentary agriculture, particularly in river valleys, but the terrain across FATA is predominantly hilly, dry and not conducive to signicant agricultural production... Only 7 percent of the total geographic area is cultivated, with another one per cent recorded as fallow, accounting for roughly half of all potentially cultivable land. Approximately 38 percent of the population is involved in crop production

14 After the declaration of independence of British India, these tribes declared accession to Pakistan through a Jirga (see below), but they remain Azad Elaqa, or Independent Territory. 15 For a very small sample of a much larger number of such references, see Gall (2008c), Perlez and Shah (2008), Oppel and Shah (2008), Tavernise and Rahimi (2009) and Burns (2009). 16 This anti-state attitude still is prevalent today even when Pashtun take part in a states government (Gall, 2008a; Cooper, 2009; Engel, 2009).

17 The ofcial web site of the FATA, http://www.fata.gov.pk/ (accessed May 1st 2013). 18 As noted above, the focus of this presentation is on the Pashtuns in FATA, recognizing that the actual tribal area also encompasses a substantial portion of Afghanistan and Pakistan outside the FATA. In fact, the political boundary between Pakistan and Afghanistan, the Durand line, was drawn by the British without regard to maintenance of tribal areas (indeed, they intentionally divided the Pashtuns as they realized that they were not going to be able to conquer them (Mackay, 2009; Rubin, 2006)), but the border has never been recognized by the Pashtun tribes and they are not effectively bound by it (e.g., see Filkins, 2002; Gall, 2008c, 2010; Mackay, 2009; Gannon, 2009; Perlez & Shah, 2009). This arbitrary border actually does affect many tribal members, however, because crossing the border can provide sanctuary for individuals and groups engaged in conict with one of the ofcial governments of Pakistan or Afghanistan (e.g., see Filkins, 2002; Gall, 2008c, 2010). The point is that the political boundaries of the FATA do not correspond with the Pashtun tribal boundaries. FATA boundaries also do not correspond with the jurisdiction of Pasthunwali, as numbers of ethnic Pashtun who live outside the FATA area in Pakistan on both sides of the Durand line continue to follow at least parts of Pashtunwali, if not all of it. 19 The ofcial web site of the FATA, http://www.fata.gov.pk/ (accessed May 1st 2013).

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Fig. 2. The FATA region and the Seven Agencies.

(World Food Programme, 2010, p. 30). Sedentary agriculturalists generally live in villages near their land, but many Pasthun in most parts of FATA are nomadic herders who move their sheep and goats from pasture to pasture throughout the year. The same holds for much of rural areas of Pakistan and Afghanistan occupied by Pashtun.20 Nomads live in camps consisting of multiple households.21 Pashtun nomads and villages are spatially

separated, but social relations between the two domains are close; there is a constant mutual ow of humans, goods and services between the two (Glatzer, 1996, p. 30).22 In fact, most nomads

20 In some cases, Pasthun are sedentary for part of the year and nomadic for part (Grace, 2004, p. 9). 21 Multiple households live together for social and security reasons, but also for economic reasons. Joint herding frees labor for other activities such as processing and marketing products from animals. The nomads trade about two thirds of what they produce with the agricultural villages in order to obtain goods other than meat and milk products. A household can handle limited herdsbetween 10 sheep (or 20 goats) and 50 sheep/goats per adult member of a household (Glatzer (1996, p. 29). Households join together in herding units consisting, on average, of ve to six

households, although Glatzer (1996, p. 29) observed as few as two and as many as ten households cooperating in this way. A herding unit may have combined herds of up to 600 sheep and/or goats but ideally consist of about 500 small stock. This can be explained by animal behavior in herds, by ecological constraints and by working capacity of shepherds (Glatzer (1996, p. 29). Camps may consist of just one herding unit but several units may camp together at times, depending on the number of animals that can be pastured in a locality. 22 One reason is that the best highland pastures that are used in the summer are often controlled by nearest villages. The villages rent the pastures to nomads on seasonal basis. The nomads generally do not pursue ownership of highland pastures (or establish long-term rental contracts) because the pasture quality varies from year to year (Glatzer, 1996, pp. 3033). In contrast, nomads often have usufruct rights to lowland winter pastures. These rights are established by using an area over several

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have close relatives in the villages and visa versa, as explained below. 3. Pashtunwali Pashtunwali guides all activities of individual tribesmen from early childhood to death, while also providing guidelines for collective decision-making, dispute resolution, communal interaction and various other collective obligations.23 It is recognized throughout the Pashtun tribes, although some of its specic rules vary across tribes. This is common in customary law systems (Benson, 1988), but in this case it probably also reects centuries of interaction with other people. When it comes to the matter of authority and subjugation to any state, however, a Pashtun of the twenty-rst century FATA is the same as a Pashtun a millennium ago.24 In addition, there are a number of fundamental rules that apply throughout the Pashtun tribes. The provisions of Pashtunwali examined here are among these fundamental obligations.25 3.1. Badal Badal can be roughly translated as retaliation or revenge, or as the balancing of an action with a reaction of similar weight and severity. In other words, Badal is a recognized right to extract proportional retribution.26 This right applies to individual Pashtun as well as for families, sub-tribal groups and tribes. Badal instills enforcement incentives (incentives to pursue and punish offenders) in a legal arrangement that does not recognize an executive with coercive power to police and punish. Indeed, Badal is both a right and an obligation. Victims are obliged to pursue retribution. To understand why, it must be noted that Pashtun tribesmen have internalized a very strong sense of self-respect. In this context, the Pashtun are very much a warrior society.27 Individual honor is of paramount importance, including a reputation as a fearless warrior. The importance of honor and reputation as a warrior is a common characteristic of customary law societies (Benson, 2006). The

consecutive years. However, if a usufruct right holder is not using the pasture anyone who wants to use it can, unless/until the rights holder arrives with his herd. 23 Interview with a member of the Mohmand tribe. 24 Interview with a Mohmand tribesman. 25 In addition to multiple interviews, information about Pashtunwali discussed below draws from Glatzer (1996), Ginsburg (2011), Hawkins (2009), Ahmed (1976, 2004), Kakar (2003), etc. 26 It is widely recognized that bilateral repeated dealings by members of a community can create incentives to cooperate (e.g., trade, engage in joint production) but they also provide ability to threaten punishment with tit-for-tat strategies (Axelrod, 1984). Vanberg and Congelton (1992, p. 420) explain that most forms of interaction are not actually characterized by the typical game-theoretic models, however, because these models assume that the individuals must play. In reality, individuals may have an exit option. An exit threat becomes credible when each individual is involved in several interactions with different individuals, in part because the same benets of cooperation may be available from alternative sources. Vanberg and Congelton (1992, p. 421) suggest that one strategy, given a credible exit option, is retributive moralityunconditional cooperation until non-cooperative behavior is confronted, along with some form of explicit punishment as exit occurs. Other members of the group must recognize that the victim of the non-cooperative behavior has the right to seek retribution, however, so they do not interfere. In this context, one of the primary rights in customary law is the right to self-defenses, and when someones property or person is harmed, a natural extension is pursuit and punishment of the offender. Members of the community are expected to not interfere. If the victim imposes more than proportional punishment, however, the initial offender or his family has incentives to retaliate, and violence may intensify. Therefore, community norms generally evolve to restrict retribution to proportional punishment (an eye for an eye) (Parisi, 2001), as explained below. 27 In Pashtun tribal culture, for instance, gun possession is a matter of high pride. According to folklore there might not be enough food in the house of a Pashtun to have a meal but there will still be a weapon for each adult male. A male is considered to be adult after reaching puberty and obtaining a gun. Adult males keep their guns with them all the time.

desire for internal order (and for security from outside threatssee additional discussion below) fosters the need for policing (and military) arrangements within any community. Because there is no centralized authority, members of a customary-law community have strong incentives to propagate cultural norms about the honor associated with bravery and skill in violent conict, and to reinforce such beliefs with mechanisms through which such bravery and skill can be rewarded. Since individuals cannot be forced to become warriors they have to be persuaded. Members of customary-law communities (e.g., women who are the spouses or potential spouses of warriors, fathers and mothers of potential warriors, elders who can no longer ght) have strong incentives to encourage young males to be brave and to be skilled in combat. Thus, the successful warrior is honored, but he also receives many personal rewards (Benson, 2006). The resulting honor and rewards mean that the warriors themselves have incentives to foster (and adopt) the same beliefs. A warrior who backs down from a threat, or who does not pursue retribution will be seen as a coward, and this generally is the greatest fear instilled in boys and young men. This explains why an obligation to pursue retribution has such force.28 According to Nang-e-Pakhtoa sub-provision of Pashtunwali, an un-retaliated injury is the deepest shame, and the honor of person or tribe can be redeemed only by a similar action. Indeed, as reported by Elliot (1968, p. 69), a British Army Commander, Badal must be exacted . . . if a man failed to discharge his liabilities he was exposed to scorn and ridicule. This custom has such a binding force on a tribesman that he may take a vow to sleep on bare ground, or to eat with his left hand (something strictly abhorred in this tribal culture) until he performs Badal. These vows and resulting actions are taken in order to continually remind the tribesman that he must perform the obligation. Similarly, in a Pashtun tribal setting, celebrations are mainly feasts followed by folklore telling and tribal dances. However, anyone under a vow to eat with the left hand either must remain absent from such celebrations (a form of ongoing self-punishment), or attend but eat with his left hand in front of other tribesmen (an even more severe self-punishment through public humiliation).29 Such ongoing self-punishing or selfhumiliating behavior pushes the tribesman to carry out retaliation. Search for the offender can go on for weeks or months until Badal is executed (or one of the alternatives discussed below is implemented). If an individual is unable to carry out Badal his family, clan or tribe (in case the aggressor is from another tribe) is obliged to do so.30 As a result, damage to honor or property is expected to result in reciprocating damage; a murder is expected to generate another killing.31 There are, however, alternative mechanisms that can produce a substitute for retribution. For instance, someone from the aggressors family or clan can communicate with the

28 It also explains why some of the obligations under Pasthunwali are so important. Any attempt to damage a tribal members person or property is considered to be a serious offense, including damage to the persons reputation. Something that outsiders might see as a trivial insult can be a serious offense among the Pashtun. 29 Interview with a member of the Mohmand tibe. 30 Recall note 26 where it is noted that Parisis (2001) explains that since unregulated retaliation can lead to ongoing feuds consuming more and more resources including human life, and generate spillover costs to the rest of the community, there are strong incentives to both constrain and solidify the retribution process. Parisi (2001) observes that among the rules that generally evolve are norms that specify who can pursue retribution and who is obliged to do so. In this context, reciprocal mutual support groups typically develop in customary-law communities. These groups are often made up of family members or members of a sub-clan, but in some cases they may be based on neighborhoods (e.g., villages), religious afliation, or some other factor. Such groups have reciprocal obligations to assist each other in the pursuit of justice against outsiders, but they often have many other reciprocal expectations as well, including social, religious, and joint production activities. 31 Interview with a Mohmand tribesman.

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victim or his/her family through intermediaries, or through a Jirga in an effort to mediate and devise some method of compensation. A Jirga, an assembly of elders, is constituted with the agreement/consent of both contending parties. Jirga members, men (children and women are typically not allowed) of similar status (Ginsburg, 2011), are chosen based on their age, social respect and moral traits, such as being truthful, honest and just, and their past performance as members of Jirga.33 This restitution alternative and makeup of the Jirga are discussed in more detail below (as is another alternative to Badal). Badal might appear to be inefcient and even counterproductive because of the chain of costly consequences it might induce. In a customary law setting, however, it actually is a rational precommitment strategy. The relative certainty of retaliation achieved by the strong obligation to pursue Badal serves as a deterrent, lowering the probability of aggression.34 Posner (1988, p. 27) explains this in a discussion of retaliation in a pre-biblical setting. Presumably, in a rational expectations world, victims would not retaliate, realizing that any suffered loss is sunk and that no retaliation can undo the suffered harm. In turn, potential wrongdoers would assume the rationality of their victims, and would therefore expect no retaliation. This would lower the expected cost of committing an offense, however, increasing the equilibrium level of such offenses. Hence, such a strategy is likely to be less efcient than an obligation to retaliate. When potential victims credibly commit to retaliation in cases of unjust harm, however, as they do through Badal, the costs of these harms is reduced as at least some potential wrongdoers are deterred (Posner, 1988). The addition of a compensation alternative further reduces the level of violence, limiting the spillover costs to the larger community, and as noted above, Badal evolved to incorporate such an alternative.35 The development of a restitution option is a common characteristic of customary law (Benson, 1989, 1991; Parisi, 2001). Strong incentives arise to impose rules on the retribution process in order to reduce the likelihood of ongoing feuds that pull more people into the conict and generate spillover costs for the rest of the community, so as Parisi (2001) explains, norms develop to set an upper
32

32 Adjudication procedures are ubiquitous in customary law systems. Friedman (1979, p. 404) explains that in medieval Iceland, for instance, there were private courts, the members being chosen after the conict arose, half by the plaintiff and half by the defendant-essentially a system of arbitration. AngloSaxons used the hundred-court for the same purpose, with a representative from each Tithing in the hundred serving on the court (Benson, 1998). The Yurok, Hupa, and other Northern California tribes also had a similar arrangement in the form of crossers chosen by each party to serve together as an arbitration tribunal (Benson, 1991). Also see Barton (1967), Pospisil (1971), Peden (1977), Berman (1983), Trakman (1983), Benson (1988, 1989, 1990, 1991), Bernstein (1992), and Solvason (1992, 1993) among many others. 33 Customary law communities do not rely on executives with coercive power to induce recognition of law, but leaders do facilitate various kinds of cooperation. They lead through persuasion and example, however, rather than force. See note 46 and accompanying text. 34 This fact is clearly recognized in many tribal societies. Sulzberger (1915, p. 1) explains that, clans in juxtaposition are never quite at peace with each other. There may be a kind of truce, but this is liable to be broken at any moment. The murder of a clansman by a member of another clan is casus belli, for the sufcient reason that it weakens the assailed clan. If unpunished the act tends to be repeated. . . It must be noted, however, that while the credible threat of retaliation is a deterrent, the incentives to recognize customary rules (behave as expected) actually are largely positive: individuals expect to increase personal well-being by focusing resources in productive activities as a result of reciprocity-based credible commitments to respect each others property claims, and by engaging in mutually benecial exchange based on similar commitments to live up to promises (Benson, 1990). Production and exchange goes well beyond the material goods and personal services of a market. Individuals jointly produce mutual support of various kinds, religious and social activities, and so on. They exchange friendship, assistance, support, etc. 35 Despite the compensation alternative, some tribesmen prefer retribution (interview with a Mohmand tribesman). This preference is most likely in cases of aggression against women.

bound on the retributive harm imposed on the offender based on the harm initially imposed on the victim. Once the level of retribution has been constrained to proportional symmetry, as with Badal, it becomes predictable, and the potential for bargaining arises. The transactions costs of bargaining fall as the offender and victim are bargaining over a known commodity.36 If the offender is willing to admit guilt (perhaps with an accompanying expression of remorse37 ) and pay compensation that at least offsets the value that the victim places on revenge, then further violence is avoided, and in many customary law systems, the offender reestablishes membership in the community when an appropriate payment is made. So-called blood money becomes increasingly prevalent.38 The right to retaliate is waived in exchange for a satisfactory payment. The desirability of peaceful settlements through compensation, along with recognition that the transactions costs of negotiations between a victim and offender can be quite high, suggests that some substitute for negotiation also becomes attractive. Often a third party, such as a community leader or group of leaders steps in or is called upon to encourage a truce of some kind so that negotiations can occur. Given the potential animosity between the parties, this third party also mediates or arbitrates the dispute in many customary law systems (Pospisil, 1971; Friedman, 1979; Benson, 1990, 1991). The third party performing these functions under Pashtunwali is the Jirga, as noted above. Jirga may convene at the request of a plaintiff or through other mechanisms discussed below. Refusal to accept a Jirga can result in an individual being declared an outlaw. Outlaws are no longer protected under the law, so any previously existing obligations (e.g., by members of a support group) are voided. The individual is ostracized and can actually be attacked without any legal consequences for the attacker. Every effective legal system is backed by a threat of punishment, but that threat need not come from a centralized coercive authority. Badal, the threat of retaliation, backs Pashtunwali, but there also is a collective threat suggested by the consequences of refusal to accept a Jirga. Indeed, the non-observance of any of Pasthunwalis provisions is considered disgraceful. This leads to ridicule, refusal to interact with the disgraced individual in various ways, and in the extreme, expulsion of an individual or family from the subclan, clan or even the tribe. Even partial ostracism is costly, but the repercussions of complete social boycott means complete social and economic devastation.39 Such ostracism is evident among the

36 One of the best-known examples of retaliatory provisions is the code of Hammurabi. This code also implies that the penalty was to be imposed with uncompromising symmetry, with retribution replicating the harm suffered by the victim and his family (Roth, 1995). 37 Negotiation of restitution between a victim and offender may be very difcult, if not impossible, of course, without some additional options. As a consequence, a customary norm often develops which requires guilty parties to express remorse or repentance, thereby reducing the costs of negotiationsee the following discussion of Nanawatey in this regard. 38 Posner (1980) suggests that compensation was not a feasible alternative to retaliation in early legal systems due to limited wealth, because wrongdoers simply could not compensate victims. Therefore, he contends that compensation becomes an alternative at a later stage of economic development. Many customary law systems developed alternative methods of payment such as allowing payments to be spread over time (Benson, 1990, 1991, 1994), however, allowing compensation arrangements to evolve even with near-subsistence living standards. In fact, payments do not have to be monetary, as labor services or other goods often serve as restitution. Offenders can agree to become indentured servants until the debt is worked off (Benson, 1990, p. 25, 1994), for instance. In many systems an indentureship can be sold, so the victim receives immediate compensation and the offender is obliged to work off the debt under someone elses supervision, often a member of the debtors family or mutual support group. These arrangements evolve into surety associations in many customary law systems. 39 Given the availability of competitive alternatives, all members of the community have a refuse-to-play option (Vanberg & Congleton, 1992) as noted in note 25,

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Pasthun as members of a village or tribe destroy the house vacated by the ostracized individual/family. Its remains are left for some time as a sign of implementation of justice.40 When Jirga is accepted, the focus becomes the calculation of compensation. In Pashtun tribes this can be a tedious process for a Jirga because this body does not have any coercive authority to impose a solution. The process is not arbitration where a judgment is announced and the parties are obliged to accept it [e.g., because of an ostracism threat if they do not]. Parties to a dispute must be persuaded to accept a solution. The compensation calculation mechanism also involves many variables as Jirga determines the loss of the aggrieved party, quantifying the loss if it is not a direct material loss, according to customary norms.41 Then the defendant is confronted with the assessed compensation payment (note that compensation is not necessarily monetary; in fact, it often involves a transfer of ownership to cattle, and in some cases, women for marriage). He need not accept the assessment, however. Indeed, both parties can plead before Jirga if they object to the assessment. Jirga members may attempt to persuade the objecting party and/or reassess their decision, perhaps proposing a new one. This process can continue through several iterations. In short, the procedure of Jirga resembles modern mediation as the parties involved are drawn to a mutually acceptable solution. Once a consensus is reached, Jirga announces its decision, a decision already agreed upon by the contending parties. The subsequent process has much in common with medieval Iceland described by Friedman (1979, p. 405). The defendant is expected to pay, and if he does not, the plaintiff could go to court again and have the defendant declared an outlaw. The killer of an outlaw could not himself be prosecuted for the act; in addition, anyone who gave shelter to an outlaw could be prosecuted for doing so. Despite what appear to be high transactions costs in reaching a consensus and the potential for the defendant to refuse to pay even after agreeing, it is estimated that Jirgas resolve about 95 per-cent of the cases in which they are invoked (Robichaud, 2009).

3.2. Thega Peaceful third party dispute resolution is an attractive option for people in a customary law community who are not directly involve in a conict, because it reduces potential spillover costs of violence. Therefore, mechanisms often develop under customary law to encourage or even oblige parties in a dispute to accept such a process even if they may prefer a violent solution.42 Encouragement might come from social pressure, and over time acceptance of mediation or arbitration may become expected, obliging the parties to pursue the alternative.43 Processes for halting the retribution process are, in fact, key provisions of Pasthunwali. One of these processes it Thega. Thega, also referred to as Kanrrey by some tribes, literary means putting down a stone, but essentially, it is a temporary truce declared between the feuding parties.44 This truce might arise at the request of one of the parties, as suggested above, but it can also be initiated by tribal elders. Once the truce is in place, no party dares to violate it for fear of punitive measures that range from heavy nes to outlawry. The Thega process has remained the same for centuries, even though the methods of potential violence have changed with modern weapons. When hostilities break out today between two individuals, factions, families or even tribes, the resulting exchange of gunre creates an imminent threat to life and property. A Jirga can intervene to temporarily stop the confrontation. The Jirga then discusses the issue with rival parties and announces a Thega. At times a stone is literally placed between the houses of feuding parties. Essentially, this is a temporary truce accompanied by consultation with all the parties concerned. In order to enforce Thega, Jirga negotiates a Nagha or ne in agreement with both the parties, which is to be paid by either party who violates the temporary truce. The objective underlying Thega is to restore peaceful conditions by providing an opportunity to the two sides to peacefully settle their dispute with the assistance of tribal elders who insure that justice and fairness apply. The parties adhere to the terms of the truce, in part because of the threat of a heavy ne. If a party violates the truce and refuses to pay the ne, Jirga can call on the community to recover the payment. There is no organized police force, but Jirga can call on a tribal lashkar. When Jirga convenes every available male adult is expected to participate in lashkar if necessary, backing Jirga to maintain the truce. The lashkar might burn the offenders houses, and/or expel them from the locality or tribal area. As a result, Thega is essentially never violated.45 Thega appears to be a very effective means of loss minimization. In the absence of any procedure for temporary truce, many feuds might perpetuate, resulting in continuing economic losses. Furthermore, and importantly, losses from violence can easily spill over, affecting non-feuding members of the community, perhaps drawing more families into the feud as they pursue Badal for the harms suffered due to proximity to the conict. Therefore, through Thega, the Pashtuns customary law supports the overall welfare of tribe by reducing such externalities. In fact, during the period of the

and therefore, they may cut off all relationships with someone that they know has behaved inappropriately toward anyone in the community. Thus, to the extent that information, or truthful negative gossip (Ellickson, 1991, pp. 180182) can travel, the negative consequences on reputation can limit the wrongdoers ability to enter into various kinds of economic and social relationships. If everyone spontaneously responds to information, the non-cooperative individual is excluded from all interaction with any member of the community. Such spontaneous social ostracism can be a very signicant punishment, and it is very common in customary law systems (Benson, 1990, 1991). Note that ostracism need not be absolute. Individuals might continue interacting with someone who has misbehaved, but with added conditions that impose costs on the offender. In exchanges, for instance, conditions may have to be met to reduce expect risks of dealing with a person with a poor reputation [e.g., higher prices may be demanded from a person who has been non-cooperative if selling, or lower prices if buying, or a bond may have to be posted]. 40 Interview with a Mohmand tribesman. 41 History and anthropology suggest that the restitution calculation may be quite simple or quite complex. For example, the Hebrew Bible dictates that When anyone, man or woman, wrongs another..., that person has incurred guilt which demands reparation. He shall confess the sin he has committed, make restitution in full with the addition of one fth, and give it to the man to whom compensation is due (The New English Bible, Numbers 5: 67). In some systems, rules evolve that detailed the payment for every type of anticipated offense (e.g., Peden, 1977; Goldsmidt, 1951; Benson, 1990, 1991; Barton, 1967). In some cases such as medieval Iceland (Friedman, 1979), the payment depends in part on whether the offender tries to hide or deny the offense. If the offender admits guilt, thereby lowering the costs of pursuit, prosecution, and trial, the payment is lower. Repeat offenders were also treated differently in many restitution-based systems. In AngloSaxon England, for instance, an offender could buy back the peace on a rst offense, but a second offense would not be forgiven. Such an offender is declared an outlaw. In other societies capital punishment has been applied for repeat offenders. Similarly, in many societies where restitution is the primary goal of the justice process, payments also can be a function of the status of both victims and offenders (Peden, 1977; Barton, 1967).

Recall note 35 in this regard. Norms often develop that oblige the victim to pursue arbitration or mediation rst, and allow retribution only if the offender refuses to accept third party dispute resolution. In fact, in early medieval England, Ireland, and Iceland, and in a large number of tribal societies that anthropologists have studied, victims did not have the right to exact physical punish unless and until the offender refused to pay fair restitution (Benson, 1990, pp. 1130; Peden, 1977; Friedman, 1979; Pospisil, 1971; Goldsmidt, 1951; Barton, 1967). 44 Interview with a Mohmand tribesman. 45 From a follow up interview with a Mohmand tribesman.
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truce, the contending parties can reestablish their daily routines, although they are expected to avoid confrontations. While Thega is in place, the Jirga continues its efforts to mediate a solution to the feud. This may take several days, weeks or even longer, as noted above, because a solution must be acceptable to both the parties. Jirga is very inuential and obligations to participate are backed by lashkar, but it is not a court with power to impose a solution. The roll and inuence of Jirga might be surprising to outsiders who believe that Pashtun communities are governed by Khan. A Khan is a senior member of a respectable family in a village. While outsiders may see a Khan as an executive authority, like a lord in feudal Europe, this is not the case. A Khan is likely to be highly respected and wealthy but as Glatzer (1996, p. 36) explains, Khan is not an institutionalized position; . . . any drund saray (heavy man or big man) can assume the title. A khan has constantly to re-assert his status through continuous transactions, one of which is securing pasture for his clients. In return the khan can expect at least limited and conditional political loyalty from his beneciaries. His main reward is increased respect. . . A Khan can have substantial inuence because of the respect he attracts, but he can never override Jirga (indeed, he is likely to participate in a Jirga), or go against tenets of Pashtunwali. He has no coercive power so he does not provide any sort of policing (nor does he legislate, prosecute or determine punishment).46 Indeed, a community may have multiple individuals who are considered to be Khan.47 These Khan do consult and nominate a Musher Khan who is considered to be the local head, but this individual is not an executive or ruler. He has certain obligations, some of which are suggested below, in representing the community, but failure to fulll these obligations or efforts to impose authority will result in loss of the position. The preceding discussion focuses on the village, but nomads have similar arrangements. For instance, Sarkhel serves as spokesman for a camp. This position is not as prestigious as a Khan. One reason is that the camps are regularly joining together and breaking up.48 The Sarkhel usually is the head of the richest household in a particular camp. He serves as spokesman in negotiations for pastures and for right of passage during migration, and if a camp requires additional labor (e.g., shepherds) he negotiates the contracts. He has no deciding power within the camp. Decisions which matter for the camp as a whole are decided in councils of all adult males and often some females (Glatzer 1996, p. 37). These councils also are the camps version of Jirga.

3.3. Melamastya When the Pakistan government sent its army into some of the tribal territories serving as refuges for Afghan insurgents in April 2009, millions of people were displace, becoming refuges in other parts of the country.49 The government did not address this massive problem, however, and while some help was provided by international relief agencies and the United Nations, it is estimated that close to three million refugees were living unseen in houses and school (Tavernise, 2009). They were taken in by relatives, friends and even complete strangers in what Tavernise (2009) calls a colossal act of charity. . .. [because these hosts] are Pashtuns, an ethnicity famous for its hospitality. . . This hospitality reects Melamastya, another key provision of Pashtunwali that must be recognized in order to understand Nanawatey, another important method for halting violence that may arise through Badal. Pashtuns take great pride in their Melamastya tradition, which insures respect, care and hospitality for any visitor. Any person, whether from the same tribe but different village, another clan or tribe, or even a stranger, and whether known to the inhabitants of a village or not, will be received as a guest if he travels to the village. Caroe (1965, p. 351), Governor of what was the North West Frontier Province of the British Indian Empire (194647), notes the importance of hospitality among the Pashtuns: the giving of hospitality to the guest is a national point of honor, so much so that the reproach to an inhospitable man is that he is devoid of Pakhto, a creature of contempt. It is the greatest of affronts to a Pathan to carry off his guest, and his indignation will be directed not against the guest who quits him but to the person who prevails on him to leave. Any traveler who stops at a village to spend the night is considered a guest of the whole village. He is invited to stay in the village hujra, which serves as a communal guesthouse (it also is used for other purposes). Generally it is constructed with contributions from well-off tribesmen and may include two to three rooms, or even more depending on the size of village and availability of funds. All the residents of the village take turns ensuring a supply of water, as well as cleaning and maintaining the hujra.50 There is a courtyard attached to the rooms where villagers gather in the evening after nishing their daily activities to chat over a cup of qahwa.51 An inuential and/or wealthy tribesman or Khan also often maintains a personal hujras, located close his home and used almost daily to gather his friends for an evening qahwa session. If a guest is staying in a community hujra then he is served meals. If someone in the village knows him, that person serves as a host and provides meals. If he is a complete stranger then a tribal elder or Khan serves the meal. The host is expected to offer as much as he possibly can, in preparing meals for the guest, as Melamastya obliges a tribesman to go well beyond what his household would generally consume. After the meal, all the male members of the community gather in the hujra to entertain the guest. The guest is the focus of this event, as the tribesmen listen to folklore about his tribe and stories about his experiences. Musical entertainment may also be provided.

46 Interview with a Mohmand tribesman. Also recall note 33 in this regard. Leadership in customary law systems is conditional, as leaders do not have specied terms or binding claims to loyalty. They generally serve as a nexus of the voluntary relationships that dominated the internal life of the community. Therefore a very important leadership characteristic is a reputation for making good decisions (wisdom) that benet the community at large. Anyone who acquires a leadership role is likely to be a mature, skilled individual with considerable physical ability and intellectual experience, and perhaps more important, someone who has a history of cooperative behavior. He has earned respect (Benson, 1991; Pospisil, 1971), but he also must continue to earn respect. As third party mediation or arbitration develops in close-knit groups these individuals also are attractive candidates to serve as mediators or arbitrators. Furthermore, individuals seeking recognition as leaders have incentives to help resolve disputes free of charge because it enhances their prestige (Pospisil, 1971; Benson, 1991). 47 Customary communities often have multiple leaders. Competition for followers can, therefore, arise and community members may change their primary allegiances whenever they feel that a leader has failed to perform well or when another individual offers superior options. Specialization among leaders also is not uncommon. 48 Glatzer (1996, p. 30) carried out an 18-month case study of Pashtun nomad camps. He started with one family, following the camps they participated in plus any that branched off these camps. He observed 12 fusions and ssions during this period. He also reports on a longer and broader study (197077) over a much larger area concluding that instability in camp makeup is common.

49 It should be noted that this military action did not result in government control of the tribal area. In fact, while 28,000 troops were sent into one of the FATA, South Waziristan, there apparently was no plan to occupy South Waziristan (Perlez, 2009b, quoting Tariq Fatemi, a former Pakistani ambassador to the U.S.). The Pakistani forces did not even accomplish the primary objective that the U.S. government was seeking. The Obama administration issued a report in April 2011 that was highly critical of Pakistans military effort to clear Afghan insurgents, Taliban and Al Qaeda from the border (Sanger & Schmitt, 2011). 50 Interview with a Mohmand tribesman. 51 Qahwa is a local freshly brewed tea with additional ingredients.

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In the rugged mountains and harsh climate occupied by the Pasthun this tradition apparently evolved in order to provide for the safety and care of travelers. Looking a little deeper, however, Melamastya clearly has other functions. It serves as a mechanism for spreading information through the tribal area, for instance. In this context, Nomads observe the same obligation (in fact, a key obligation of the camp Sarkhel is to serve as host for visitors) and as Glatzer (1996, p. 47) observes, Nomads spend much of their time and energy in setting up communications networks for gathering vital information. Observers unfamiliar with nomadism often mistook this for a leisurely pastoral life: nomads (not only Pasthun) can sit and talk together for days and weeks, practice lavish hospitality and undertake hazardous trips for visiting other nomad groups. The same applies for the villages. Indeed, the spread of information is key to a well functioning customary law system. Tribal members must be informed if someone has been outlawed, for instance, to make the threat of ostracism credible. They also must know about a situation warranting Badal so they do not interfere with the process, and they must know when a truce has been called so members of extended families, clans and/or tribes who are obliged to pursue Badal do not break the truce. Furthermore and more generally, for reputation (honor, prestige) to be valuable enough for people to invest in building and maintaining it, information about reputation must spread. A warriors skill must be known if it is going to deter, while a potential leaders reputation for honesty, generosity and wisdom must be known so others have incentives to accept his recommendations and join him in joint production activities. In addition, Melamastya also serves as a system of mutual insurance for travelers from all of the tribes inhabiting this whole tribal belt. Under Melamastya, a tribesman, during his travels, is treated as someone with special status, but he also gains honor by hosting travelers when they visit his village. While generosity and hospitality are common in customary law societies,52 the scope of Melamastya may be unprecedented, particularly when it is invoked with Nanawatey. 3.4. Nanawatey and Panah Nanawatey53 means coming in. Like Thega, it is a method for re-establishing peace in the face of Badal, in this case by building upon the Pashtun obligation to be hospitable, Melamastya. In pursuit of Nanawatey an offender appeals to the victim for forgiveness. The procedures for Nanawatey specify how negotiations are to be carried and the conditions under which the offense can be forgiven. First, an offender must reach a tribesmans home so he can appeal for asylum. A Pashtun, always expected to care for the individual as a guest, Melamastya, is expected to do even more in this case: he is obliged to provide Panah, shelter and protection from enemies (an exception is someone eeing to avoid an agreed-upon decision of Jirga). Failure to live up to the obligation results in extreme disgrace for the person, family, clan or even an entire tribe. A famous folk story illustrates the power of Panah. The story focuses on an elderly Pashtun woman. It is said that a gang of dacoits raided her village. The villagers, including the womans two

sons, went out to challenge the dacoits. A erce gunght followed and some dacoits were killed, as where some villagers, including both of the womans sons. The villagers outnumbered the raiders who chose to retreat into the womans home. The pursuing villagers reached the house, condent that they were about to catch the raiders. They were shocked to see the woman blocking their entrance with a gun. She made it clear that she would not allow anyone to lay hands on any of the raiders. The angry villagers told her that she was protecting people who had killed her sons. That may be so, the woman sternly replied, but they have come Nanawatey to my house and are under my protection. I guard them over my life while they are in my house.54 Once asylum is granted, the details of the Nanawatey process vary between different Pashtun tribes. Essentially, the offender is expected to demonstrate regret, penance or atonement in hopes of forgiveness and tribal elders are asked to intervene. The elders, host providing Panah and offender move to the village hujra. In some tribes the petitioner goes to the hujra with turban in hands as a signal of penitence. Going bare headed is an even stronger signal, as a bare head is a source of serious humiliation. If the petitioner feels that his offense is grave enough, he puts a stful of dust on his bare head, indicating serious regret, humiliation and a desperate desire to seek Nanawatey. In some tribes the offender goes to the hujra with grass in his mouth and a rope around his neck, again showing the depth of his regret. The petitioner can also present a gift for the victim. If the offense is so serious that an immediate violent reaction is expected from the victim upon seeing the petitioner, women may go to victims house carrying the Koran overhead. This symbolizes extreme humility, and it is rarely ignored. These kinds of signals are made before asking for Nanawatey. Negotiations take place and elders attempt to convince both parties to make peace. The victim may refuse unless certain conditions are met, but if the elders are unable to achieve an agreement, Jirga can be convened. If the appeal is successful, then generally the petitioner offers an appropriate number of cattle to the victim who grants Nanawatey (forgiveness). The cattle are prepared for transfer according to individual tribes traditions. The return of peace is also celebrated, as the pardoned offender provides a feast for everyone who was part of the process.55 Summing up, the combination of credible threats of retribution with effective mechanisms for substituting mediation and compensation for retribution has provided the Pashtun with a decentralized system for maintaining order for centuries. These Pasthunwali obligations and resulting processes do not mean that offenses never occur, that all offenders are brought to justice, or that violent retribution is never actually taken, of course, but the same is true for centralized processes relying on the coercive power of the state. Similarly, the military apparatus of a state does not mean that invasions never occur or that defensive efforts are always successful. The same holds for the decentralized defensive process under Pasthunwali, although this process has allowed the Pasthun to avoid effective long-term subjugation for centuries. 4. Pashtunwali and effective resistance against colonizers and state builders There have been many studies of decentralized customary law systems, and as noted above, the provisions of Pasthunwali are similar to those of many other systems. There are very few studies of effective decentralized defense, but an important exception is Scott (2009) who explains that the Zomia have successfully remained stateless in upland Southeast Asia for thousands of years, a

Sharing norms such as hospitality and potlatching are common practices in customary law societies all over the world (Ridley, 1996, pp. 114124). There are many reasons for such behavior. Johnsens (1986, p. 42) explains the potlatch system of the Southern Kwakiutl Indians, for instance, by noting that In order to provide the incentives of would-be encroachers to recognize exclusive property rights, and thus to prevent violence, those Kwakiutl kinship groups whose shing seasons were relatively successful transferred wealth through the potlatch system to those groups whose seasons were not successful. Leadership also is often purchased through repeated displays of generosity (Pospisil 1971, p. 67). 53 Other variants of Nanawatey used in the literature include Nanawati and Nanawatai;

52

54 55

Quoted from an interview with a Mohmand tribesman. Interview with a Mohmand tribesman.

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similar history to the Pasthun. Scott (2009, p. 176) attributes effective resistance among the Zomia to three primary factors: patterns of settlement, agriculture, and social structure. Stringham and Miles (2012, p. 4) explain that these three factors can be thought of more broadly as (1) locational, (2) productional, and (3) cultural mechanisms to repel the state. In regard to location, Stringham and Miles (2012, p. 13) note that, conditions favorable to state-making include an accessible, concentrated population producing easily appropriable goods that can feasibly be returned to the state centers. If the cost of physically traveling to the taxable population and returning collected taxes to the state center is signicantly higher than what it costs the taxable population to move out of the way, the state is cost prohibitive. By locating in inhospitable areas with limited transportation options, the Zomia raise the cost of state building. The Pashtun do not inhabit impenetrable jungle such as those in upland Southeast Asia, but they do occupy a very inhospitable area, as explained above. A World Food Programme (2010, p. 18) report on conditions in FATA explains, for instance, that, market functioning is hampered by difcult topographical terrain, poor road infrastructure and low population density. . .. Transportation infrastructure in FATA is particularly rudimentary, with a road network of only 0.18 km per sq km of area. Main roads lead up to and through FATA; however, many communities do not have links to these main roads, and therefore little access to markets. Little access to markets means that government ofcials and military also have considerable difculty trying to control the Pashtun in FATA, of course, and the same holds for large portions on Pashtun territories in Afghanistan and other parts of Pakistan. Another characteristic of Zomia territory noted by Scott and StringhamMiles is that it encompasses areas in multiple political jurisdictions, allowing escape into even more inhospitable territory or across political boundaries when a particular state attempts to subjugate an area. The same applies for the Pashtun, of course, but there are other opportunities to escape, as well, because of characteristics of Pashtun production. The Zomia are agriculturalists but they generally practice swidden (slash and burn) agriculture and produce a wide array of escape cropscrops that had characteristics that made them more costly to appropriate and measure. These included adaptability to the environmental niches of upland Southeast Asia, staggered maturity, high growth rates, crop concealability, low labor intensiveness, heavy weight relative to value, and, importantly, the ability to grow beneath the ground. Certain cultivars that spoiled quickly such as fresh fruits and vegetables also served this function (Stringham & Miles, 2012, pp. 1617 citing Scott, 2009, p. 199). These production practices make it very costly for a state to measure and tax outputso costly in fact, that government ofcials generally consider doing so to be a waste of time and effort (Scott, 2009, p. 195). The Pashtun do not practice swidden agriculture and the range of crops they can produce is much more limited than what the Zomia have access to, but characteristics of their production still facilitates escape. Recall that Pashtun tribes have both nomadic and sedentary members but that there are close ties between nomads and villagers. One reason for this is economic, as nomads trade their meat, dairy products and wool with villagers (and rent pasture from villagers56 ). There also is a constant ow of people between the two. Most nomads have close relatives in the villages and visa versa, so some villagers generally travel to the camps to provide additional labor in periods of high demand, such as lambing. Perhaps more importantly, family ties between villagers and nomads serve as a mutual insurance arrangement to reduce risks of

specialization in the highly uncertain environment that they occupy. Nomads may require assistance as a result of particularly long and severe winters that kill new lambs and deplete their herds, for instance, while villagers practicing sedentary agriculture may require assistance when their crops are destroyed or diminished by oods or droughts. In addition, sedentary populations are much more vulnerable to attack and subjugation, but the availability of refuge with family among the nomads offers an escape. Furthermore, nomads produce pure escape crops. They can move, taking their sheep and goats with them. Pasthunwali obviously is a very signicant component of Pasthun culture, but Scott (2009) and Stringham and Miles (2012, p. 25) emphasize cultural issues that are quite different from the consequences of Pasthunwali for defense discussed below. As Stringham and Miles (2012, p. 25) explain, Although the state is manifested as a territorial monopoly on proactive, physical coercion, it requires some level of an ideology of legitimation. . .. Many stateless societies thus had embedded in their culture ideological elements counter to state legitimation, which aid in effectively repelling the ideology of the state as well as in preventing the local formation of new state ideologies, and thus aid in sustaining statelessness. Zomia have strong anti-state ideologies and they have chosen a social structure relying on small and dispersed social units without strong executives. Scott (2009, p. 276) cites other evidence, noting that assertive and autocratic headmen are despised, for instance, and stories, whether real or mythological, about such headmen being murdered are legion. As a result, state building is very costly (Stringham & Miles, 2012, p. 20). The Pasthun clearly have an antistate ideology (Gall, 2008a; Cooper, 2009; Engel, 2009) and they have a social structure relying on small and dispersed social units without executive authorities. These attitudes and the resulting decentralized system of law appear to imply that such a society will be very vulnerable to conquest, however, because no centralized process for military defense is available. Avoiding subjugation under these circumstances presumably relies virtually completely on creating incentives to not invade by limiting the production of wealth that can be conscated or taxed, and by being able to escapethe two strategies emphasized by Scott and StringhamMiles. While these tactics are very relevant for the long history of resistance to colonizers and state builders among the Pasthun, their culture has also generated a process of decentralized defense through the customary law provisions that support internal order. Consider that during the British colonial period of more than hundred years,57 Pasthn challenging British authority often escaped into the tribal territories (Oliver, 1890). Tribes fullled their customary obligation to these guest, Melamastya and Panah. As Caroe (1965, p. 351) observed, This, or something like it, was the reception accorded to the outlaw from British justice ed to the hills. In many cases host tribes were then forced by British to leave their homes and move further into the mountains to protect these guests, but they refused to violate their customary obligations. Individuals seeking sanctuary may be pursuing Nanawatey in hopes of achieving a negotiated/mediated settlement rather than Badal, as indicated above, but they also may be outlaws according to some governments law who have not violated Pasthunwali. They also may be political insurgents ghting against invaders or others using force in attempts to establish centralized governments. In any case, Pashtun are obligated to grant asylum and once granted, the safety of the person becomes an obligation of the whole tribe if the host or his family/clan cannot provide sufcient protection.

56

See note 22.

57 While the British remained in the AfghanPakistan area for quite a long time, resistance was essentially continuous and the British ultimately withdrew just as other empire builders have.

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Such hospitality and protection played an important role in the 1980s when the U.S. and NATO fought a proxy war with Soviet forces for a decade by supplying mujahideen,58 many of whom came from around the world to join the Afghan resistance. Upon Soviet withdrawal,59 the mujahideen were abandoned by their western supporters. Some foreign mujahideen moved in with Pashtun tribes, asking for protection (Rubin, 2006; Gall, 2008b). Asylum was granted as dictated by custom. After one of the resulting networks instigated the 9/11 attacks, U.S. and NATO forces moved into Afghanistan, this time not by proxy, in an effort to defeat the same forces they supported in the 1980s. The tribes were expected to turn over their guests, now labeled as terrorists.60 No one familiar with the Pashtun should be surprised that they refused. Growing numbers of outside forces have been invading Pashtun tribal areas on both sides of the Afghan/Pakistan border since then, with the Pakistan Army invading areas within the FATA, and the U.S./NATO coalition sending even more troops as part of the surge, launching unmanned drones into tribal areas on both sides of the border, and so on. As these efforts kill more insurgents and/or destroy more property they invite Badal,61 and those seeking revenge are potential recruits for the Taliban62 and other insurgents.63 Insurgents also seek and are granted Panah, often in the FATA, so when they are attacked their hosts are pulled into the resistance. Recognizing this when he served as the U.S. commander in Afghanistan, General Stanley McChrystal issued new guidelines urging the troops to see the country from the perspective of the population in order to understand that the insurgency cannot be defeated by attrition; its supply of ghters, and even leadership, is effectively endless (Associated Press, 2009). A battle with a small force of ten insurgents that results in two of the ten being killed means that relatives of the two who are killed will seek retribution, probably by joining the insurgents and 10 minus 2 equals 20 (or more) rather than 8 (Associated Press, 2009). So-called collateral damage harming or killing non-combatants adds additional

tribesmen to the resistance in pursuit of Badal.64 If outsiders respond by increasing force more Pashtun retaliate. While Badal underlies the law enforcement process and generates deterrence and Nanawatey provides a peaceful alternative method for re-establishing order within and between Pashtun communities, these customary obligations also draw increasing numbers of Pashtun into conicts with outside powers.65 This explains how the tribes have successfully resisted efforts by outsiders to colonize the area even though the tribes have never had an organized and centrally directed army. The combination of Badal and Nanawatey with the tradition of Panah, means that invaders inevitably fail, as aggression against Pashtun and their guests draws more and more tribesman into the conict. No centralized hierarchical military system is required for Pashtun tribes to prevail over invaders when their members follow Pashtunwali. The Pashtun do not defeat invaders with overwhelming force. They wear the invaders down with continuous and ever-increasing resistance that gets perpetual motivation from Pashtunwali. Inevitably, the invaders learn that they will never win, so they retreat.66 Effective nation building through force is also destined to fail as long as Pasthunwali is recognized and followed by tribesmen.67 The Pashtun may be willing to allow a government to claim jurisdiction over their territories but attempts to actually impose control will lead to fatalities, Badal and Panah. Resistance will not only persist but grow stronger, and the nation builders will either recognize that they have to allow the Pasthun to govern themselves through Pasthunwali or abandon the territorial claims. 5. Conclusions The Pashtun tribes who inhabit the rugged mountains between Afghanistan and Pakistan are neither lawless nor defenseless. They have been effectively stateless for centuries, and continue to be even though central governments claim jurisdiction over their territories. This does not mean that there is an absence of governance. The members of these tribes follow the centuries old customary law, Pashtunwali. This decentralized process for maintaining social order includes an effective conict resolution mechanism that does

58 This term generally refers to groups of ghters operating against the Russians in Afghanistan during and after the Soviet invasion, including both domestic insurgents and foreigners. 59 The Soviet Union invaded Afghanistan in 1979 to support a communist government that claimed to rule the country after a coup. Apparently Soviet leaders realized they had blundered as soon as they invaded but Withdrawal was a long, drawn out agony as they searched for some way to withdraw with honor (Sebestyen, 2009). They nally pulled out in1989 after approximately 15,000 Soviet soldiers had been killed, along with an estimated 800,000 Afghans. 60 The Soviets also labeled the insurgents as terrorists (Sebestyen, 2009). 61 Rhode (2009), a journalist held captive in the FATA, reports that the Taliban recruits new ghters seeking revenge when drones kill Pashtun, for instance, and General David Petraeus, then NATO commander, observed that Every Afghan death diminishes our cause (Fasiez, 2010). 62 Pashtun also pursue Badal against Taliban and other insurgents who kill or harm relatives and guests, destroy property and so on (Filkins, 2009; Perlez, 2009a). 63 Direct war-related damage and casualties are not the only factors leading to Badal and increasing resistance. For instance, NATO forces and the Afghan government have undertaken a number of opium-eradication efforts. The farmers whose crops were targeted naturally saw these actions as attacks on them and their property/livelihoods and as a result, many of them turned strongly against the Afghan government (Kovach, 2011, 2F). The Taliban and other relatively organized insurgents have taken advantage of the incentives to resist eradication efforts by assisting in protecting poppy crops and attacking government ofcials involved in eradication efforts (Kovach, 2011, 2G). In this context, note that a large portion of the FATA economy is now fueled by opium and the ongoing Afghan war. Cross-border smuggling is very attractive and difcult to stop, so opium moves from Afghanistan through FATA to Europe and elsewhere while arms move in the opposite direction. Outside of smuggling, income-earning opportunities in FATA are generally limited, and As a result, the large number of unemployed young men may easily be swayed by radical religious groups, who not only appeal to them ideologically but also offer substantially higher pay than the government or private sector (World Food Programme, 2010, pp. 3435). The Taliban reportedly pays members a signicantly higher salary that most other occupations in FATA, about $ 190 a month (World Food Programme, 2010, p. 35), primarily from revenues collected from the opium trade.

64 In this context, the U.S. has created a compensation program as a response to the growing numbers of civilian casualties, as well as property damage (Christian, 2008). The payments are estimated to be about half those arrived at through the Pashthunwali process, however, so the program probably is not sufcient to end the pursuit of Badal. 65 While much of the political and media discussion about Afghan resistance simply labels all insurgents as Taliban or as Taliban and Al Qaeda, this is very misleading. As Kristof (2009) correctly points out, some insurgents are true Taliban ghting for ideological and/or religious reasons, But others become ghters because they are paid to do so [see note 63], because a tribal elder suggests it, because it gives them an excuse for traditional banditry, because American troops killed a cousin [i.e., Badal], or because they resent indel forces in their land. Still other reasons for joining the insurgency include destruction of property including poppy elds and heroin [see note 63 as well as Rubin (2006) and Chivers (2010)] a strong anti-state or anticentral government view, attacks on guests who have been given protection by a Pashtun as explained above, actions by military forces that violate other strongly held Pasthunwali rules that protect individual honor (Rubin, 2006; Gall, 2010), and so on. 66 Predictably, American generals and civilian ofcials [now] acknowledge that they have all but written off what was one of the cornerstones of their strategy to end the war here: battering the Taliban into a peace deal (Rosenberg & Nordlund, 2012). 67 Invaders and nation-builders have incentives to replace Pasthunwali with some other law, of course, and this certainly has been attempted. Recall note 12s discussion of the attempt to create a strong kingship over the Pasthun which included an effort to impose Islamic law and establish Sharia courts. This ultimately failed as Pasthun tribes overthrew a subsequent King. The Taliban also attempted to impose Islamic law within Afghanistan. Whether this would have ultimately succeeded is not known, since the NATO/U.S. invasion deposed the regime. Similarly, the likelihood that U.S./NATO efforts to establish a centralized democratic Afghan government will succeed is probably quite low.

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not involve government courts, police, jails, lawyers, law schools, bailiffs, county clerks, prisons, prison guards, judges, or armies. Pashtunwali is a complex system of rules and procedures. A single article cannot begin to describe it in any detail. Four primary provisions of this customary law system are briey examined here, however, in order to demonstrate several key aspects of Pashtunwali: Badal (retaliation), Thega (temporary truce), Melamastya (hospitality including the granting of asylum, Panah), and Nanawatey (remorse and forgiveness). All have reasonable economic underpinnings. Badal is a rational pre-commitment strategy. Such revealed preferences deter offenses against life and property within a tribe and between different tribes. It also provides an effective system of private enforcement of law when offenses are not deterred. Thega serves to minimize any immediate spillover costs of Badal, as violence is avoided through a temporary truce during which Jirga made up of tribal elders mediates in order to nd nonviolent solutions, often involving compensation to the victim that is acceptable to both parties in the dispute. The tradition of Nanawatey or seeking and granting forgiveness is yet another mechanism used to minimize the severity of Badal. Tribal elders assist the parties as they seek an acceptable demonstration of remorse and repentance. Melamastya provides mutual insurance for travelers in this rugged area and a mechanism for information ow. This hospitality obligation can extend to someone who commits an offense and requests asylum, Panah, while seeking Nanawatey. The same tenets of Pashtunwali provide incentives for Pashtun resistance to imposition of centralized coercive government. Invaders kill tribal members and damage their property, leading to Badal that becomes the basis for increasing numbers of resistance forcesinsurgents or terrorists according to the invading forces. Insurgents also seek Melamastya and Panah, its accompanying obligation of protection for the visitors, so efforts to pursue insurgents leads their hosts to join in the resistance. Rather than deterring resistance, increasing use of force leads to continuous and increasingly strong resistance, ultimately wearing down the invaders determination and leading to their withdrawal.68 References
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68 This presentation is intended to be positive analysis, not normative. Pasthunwali appears to work for the Pashtun. It does appear to have some shortcomings, however. For instance, outsiders with organized militaries and a desire to expand their territories have, for centuries, looked at the Pashtun as a potential target because they do not have any organized system of defense. Defense does not arise until after an invasion so it may be a relatively weak deterrent, as suggested by the long history of invasions. Does this mean that the Pashtun would be better off with a centralized standing army and the state apparatus that comes with it? Our analysis cannot answer this question, although it does appear that many Pashtuns believe that the answer is no. This presentation does explain, however, that there is in fact an alternative to state provision of defense if the population follows a customary law system that creates sufciently strong incentives for revenge and protection. Pashtunwali has done so for centuries.

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