The Afghan Professor Who Finds a Place in the World Helping His People

Among the casualties of the war in Ukraine might be the freedom of the Afghan people, according to Haroun Rahimi, an Assistant Professor of Law at the American University of Afghanistan in Kabul, currently covering the position of Visiting Professor at Bocconi Department of Legal Studies. "As a scientist, I can't say for sure that there is causation, but we can see a correlation: since the Russian attack on Ukraine, the ruling Taliban have imposed more restrictive measures, and you could argue that they appreciate that the world may be occupied somewhere else." Examples are new restrictions on beard length for public employees and the reversal of the decision to open high schools to girls again. UPDATE: Some ten days after publication, the Taliban's Ministry for the Prevention of Vice and Promotion of Virtue passed a decree "advising" women to wear a burka.

When the Taliban took over Kabul, on 15 August, 2021, Professor Rahimi was flying back home from the UK, where he had been a Visiting Research Fellow at the Oxford Center for Islamic Studies. "COVID seemed to be subsiding, and my university was resuming in-presence classes," he remembers. Kabul's airport, though, became immediately unusable, and Rahimi was stuck in Istanbul with a temporary visa and "no place on Earth to go." The very same day his visa was going to expire, he managed to obtain a scholarship to the International Institute for the Unification of Private Law (UNIDROIT) in Rome and, later, the Visiting Professor position at Bocconi Department of Legal Studies, "for which I thank Professors Catherine Rogers and Marco Ventoruzzo and the entire faculty."

Law in the Muslim World

Professor Rahimi's main area of expertise is international commercial law, but as a scholar of the divergent conceptions of the rule of law in Muslim and modern thoughts, Rahimi has often been critic of Taliban ideology. His return to Afghanistan is not advisable right now. "I study how Muslim countries throughout history have adopted modern legislations as a part of their laws and how this legal transplantation was legitimized. I've been writing publicly about these topics, trying to counter and clarify some of the Taliban claims with regard to law and State." To this end, he can use Twitter, which is not restricted in Afghanistan, and the Al-Jazeera English language website. Other possible international outlets, like the BBC, Deutsche Welle, or the Voice of America, are now banned.

"The Taliban claim that the law they enforce is sacred, because it's been given by God, and that there is no room for human participation in creation of that law, basically closing any accountability or representation when it comes to lawmaking," Professor Rahimi explains. "But one thing is the sharia, i.e. the Quran and the teachings and practices of the prophet Muhamad and his companions, and another thing what the Taliban enforce, which is fiqh, i.e. Islamic jurisprudence, and is very much human made." As in a common law system, in fact, Islamic jurists have been deciding for centuries on new questions based on analogy with existing solutions to similar problems. Furthermore, it is an ongoing and pluralistic debate, because in the Islamic world there is no supreme authority like a Pope, so in different places, jurists may come to different solutions.

After the end of colonialism, the newly independent Islamic countries were facing the problem of moving from the pluralistic, Islamic law to a State law, having Europe as a legislative model. "By and large, they decided to create legislatures and parliaments," Prof. Rahimi says, "and to write down the laws like any European country, but with a strict condition: the law must not violate the basics of Islam." In most cases, they selected certain opinions from the pluralistic corps of jurisprudence, and they made them into State law. On topics closer to religion, such as family law, they simply codified the fiqh, on distant subjects they almost mimicked European civil codes (the French code in Egypt, the German code in Turkey), with many different solutions in between.

Afghanistan followed this same path, with a Constitution written in 2004, "but the Taliban reject the whole process,", says Prof. Rahimi, "and stick to a particular strand of opinion: the most conservative wing of what is known as the Hanafi madhhab (school of law). The interesting, emerging thing, is that some younger Taliban, who follow a more progressive strand of the same Hanafi school, have openly declared their dissenting opinions in the months following the takeover in some areas."

Currency and Economy

In his self-imposed exile, Prof. Rahimi is also part of a group of Afghan scholars of various disciplines who think that Afghanistan should maintain a working economy even under the Taliban rule and are struggling to avoid that the assets of the Afghan Central Bank held in the US are improperly used. "Forty million people live in Afghanistan, and they are at risk of starvation. International aid is useful just up to a point, they need the possibility to do business, to trade with foreigners," Rahimi says. "A first step in the right direction are the exemptions granted by the US to the sanctions, which make it possible to pay taxes to the Taliban, even if they are not recognized as a legitimate government. An economy, though, also needs a central bank, a functioning currency and exchange rates."

A central bank exists, but the American government froze $7bln of its foreign exchange reserve held by US financial institutions, and this money is at the center of a complex litigation (summarized here: https://www.lawfareblog.com/whats-happening-afghanistans-assets), in which Prof. Rahimi and his colleagues are an active actor. The money could be in part allotted to the families of the 9/11 victims, "which would be unjust, because it's money of the Afghan people, not the Taliban's or Al Qaeda's," and in part used in humanitarian assistance to Afghan people, "which would be disastrous," Rahimi, perhaps surprisingly, says. "It's impossible to feed 40 million people by just throwing money into the country. This money is supposed to back the currency, and if it is spent, the Afghan currency becomes a worthless piece of paper. We believe that the money should be used by the central bank to conduct monetary policy, thus giving back an economy to Afghanistan."

"Engaging these complex questions helps me figure out what my place in the world is now that I don't have a home in my country anymore," Haroun concludes.