SOCIa-ECONOMIC AND LEGAL-POLITICAL

PROCESSES IN A PASHTUN VILLAGE,

SOUTHEASTERN AFGHANISTAN

by
Alef-Shah Zadran

A dissertation submitted to the

Faculty of the Graduate School of State
University of New York at Buffalo in partial
fulfillment of the requirements of the degree of
Doctor of Philosophy
 CERTIFICATION

Ph. D. Dissertation Committee, 1975-1977

Department of Anthropology
State University of New York at Buffalo

(1 ) Professor Phillips stevenJ'\{ Jr;, kfh. /~L~glairma.tl

. .J WA V .J\.} i. J k.-u-lAA-{. I }!-
(2) Professor Ann McElroy, Ph. D.~;\ ~~~~b
C;/:~>-:T_.//' / / / (~7-7
(J) Professor Keith F. Otten~e~n, jh[:tZ·_.y·"·· '~~k-'--~~-
• •, • ',lit·,
L,,, f.. ; • k•
{.•..•> ., IL,: ,'1. ,
•

External Examiner, S.U.N.Y. Buffalo

Professor Graham Kerr, Ph. D'~
.
Department of Socl.ology . . .~~~"\IV,
. . • . . . . . .

:J

Department of Anthropology
State University of New York at Buffalo
4242 Ridge Lea Road
Amherst, New York 14226
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iii
 ABSTRACT

This dissertation is based upon anthropological field-

work carried out from September 1975 to September 1976 in
the Pashtun village of Almara in the southern foothills of
"

the Suleiman range in southeastern Afghanistan. The village,

with a population of 1010, is situated about 25 kilometers
west of the Durand Line, the bQrder between Afghanistan and
Pakistan. The villagers are all Muslims of the Suni sect
and all members of the community speak one language, Pashto.
This study is a "focused ethnography" of a people.
which have never received anthropological investigation.
Legal and political anthropologists have paid limited
attention to conflict and conflict settlement particularly
among the people under study and their neighboring commun-
ities and nations. This dissertation is therefore designed
to fill the gap. The central theme of this work is conflict
resolution through indigenous legal tradition. External
legal systems such as Islamic shari~ and figh (Islamic
jurisprudence) and Western laws which are being currently
enforced in the country in general and within the village
in particular, are explored and explained. The effects of
these external legal traditions on the native tsali
(customary laws) are explained. As the data from the
village indicate, the more the external legal tradition is
utilized the more intensive is internal conflict.

iv
 Methods of research included formal and informal
interviews, the use of informants, collection of genealogi-
cal data and the utilization of Arabic, English, Persian
and Pashto sources relevant to the study. The research
works from a framework of traditional ethnography which
presents details of the kinship, descent, marriage and
nomenclature systems of the people of Almara, as well as
their technology, economic, and market systems and their
systems of ideology and values. The study is based upon a
framework of structural-functional analysis and the method
of case studies.
The dissertation is divided into eight chapters ex-
cluding introduction. The introduction spells out the
problems, objectives, methodology and theoretical formula-
tion of the dissertation. It also reviews relevant litera-
ture, and then discusses certain assumptions behind the
research and how these assumptions guided the entire study.
Chapter One deals with geography, climate, flora, fauna,
location and history of the community, Chapter Two presents
an overview of the subsistence technology, and local economy
of the people including systems of agriculture, animal
hu~~andry, forest and land ownership, lumber trading and
intra- and inter-national market networks. Chapter Three
concentrates on kinship and kinship terminology, family
systems, patterns of households, allotments of inheritance
and the organization of lineage. Chapter FOllr discusses
the rules and meaning of marriage, its stages, process and

v
types. Chapter Five focuses on political organization and
political blocs. In addition, the question of fending and
warfare are discussed in terms of trouble cases. The
politics of patrimonialism and the dawra (cycle) system as
they operate at the national and village level are explained.
Chapter Six concentrates on the meaning, structure and
principles of Islam, Shari~ (Islamic law), figh (Islamic
jurisprudence), major Islamic schools of thoughts and
criminal laws are discussed. Chapter Seven presents the
central theme of this dissertation. It deals with the
resolution of conflict within and between political commun-
ities. In this chapter the question of settlement of
trouble-cases through mediation, arbitration, "inter-
mediaries," and ordeal and oaths are discussed in detail~

29 trouble-cases are presented and all are categorized

and for each category its relevant tsale (code) is
identified. Chapter eight summarizes the dissertation
and then examines the relevance of the study both to the
viability of Almara villagers as a tribal and peasant people
of Afghanistan, and to theory and method in political and
legal anthropology. At the very end based upon this study
sev~ral alternatives for the solution of the problems are
recommended and several questions which could lead social
scientists in further studies are raised.
The diversity of legal systems in a plural society
like Afghanistan satisfied each ethnic group. To consider

vi
Lhe applicability and enforcement of the laws at national
level creates problems for the government and jUdiciary
powers. However, it may be more beneficial if the laws are
made in the light of the "customary laws" of the major
ethnic groups in a plural society.

vii
 ACKNOWLEDGEMENT

Researching and writing of a doctoral dissertation

involves many people and institutions. Therefore, "i t is
difficult to name all and everyone and thank them. First
of all lowe special thanks to Professor Dr. G. Sadiqq
Mohabbi (former President of Kabul University and
presently r,1i.nister of higher education) and former Vice-
President of Kabul University, Professor A. Salam Azimi
for their interest in my research. Both of them in
addition to providing me .wi th partial financial help (my
monthly salary while I was in the field) from Kabul
University budget, tried their best to provide me with a
fellowship or scholarship. Unfortunately, due to the
personal lack of cooperation with Kabul University on the
part of Mr. Salahi of the Ministry of planning, who was
dismissed from Kabul University and is now in charge of
the assigning and distribution of fellowships and scholar-
ships, both gentlemen failed in their endeavors. To the
respected members of the Department of Philosophy and
Social Sciences, Dean of the Faculty of Letters and
Humanities, lowe special thanks for my release from the
Department for one year. To the officials of th~ Afghan
American Education Center, I also express my gratitude for
providing me with a travel grant.

viii
 I would also like to extend my gratitude and
appreciation to my host family in Almara who accepted me as
a member of their family and provided me with whatever
they could afford. I must thank my informants who taught·
me about their way of life. I also extend my sincere
appreciation to the governor of the Paktya Provinc~ and
general director for the Paktya Developmental Project who
provided me with a comfortable room in a modern buil~lng;

without their help, it would have been impossible to find

such a place in that remote part of the country. My
special thanks goes to Mr. Ghazi Bad, Educational General
Director of Khost for his hospitality, friendship and for
introducing me to the peoplt.
In whatever measure this dissertation succeeds, it
is partially due to the-help, friendly adyice and consul-
tation, I have received from my professors and friends in
Buffalo. I lIlUSt thank Mr. Stuart Ludwig a fellow student
in our department who critically read the manuscript with
great interest and was of considerable help in the editing
of an earlier version of this study. I want to extend my

appreciation and thanks to Mr. Charles Clark who proof-read

the present version of the dissertation with great interest.
I also want to extend my gratitude to my former classmates,

Mr. David Hanson and Mr. Bertram S. A. Herbert who put

their rich personal libraries at my total disposal and
continually encouraged me to finish the dissertation.

ix
 With respect to my theoretical and methodological
background, I benefited immensely from my graduate work in
the Department of Anthropology, State University of New
York at Buffalo. I extend my special gratitude to
Professors Dr. Keith F. Otterbein and Professor Dr. Charles
Frantz for developing and sharpening my interests ~n the
subfield of political anthropology and law, through their
publications, illuminating lectures and their large lists
of bibliographies. Also, I express my special thanks to
Dr. Ann McElroy for her helpful, illuminative and con-
structive comments on my dissertation and also for her
extensive bibliography of the Middle East. Dr. Graham Kerr
and Dr. Russell Stone of the Department of Sociology were
both immensely helpful to me. Both of these Professors
provided me with extensive bibliographic references in
the domain of Sociology and lent me their personal books
for the whole year. Therefore, I express my cordial
respect and gratitude to both of them.
I am particularly in debted to my major advisor and
Chairman of the Supervisory Committee, Dr. Phillips Stevens,
Jr., who in addition to my doctoral dissertation super-
vised my M.A. and Ph.D. programs since my enrollment
in the Department of Anthropology, SUNY at Buffalo. He
read the earlier version of this dissertation in my hand-
writing which was indeed a tedious job and I admire his
tolerance. In whatever measure this dissertation succeeds,

x
without Professor Stevens' constructive and frank
criticisms, valuable suggestions and encouragement, the
study could not have had the form it does now. Therefore,
my gratitude, appreciation and deep respect of him is of
a kind which can ,hardly be expressed adequately in the
form of a simple acknowledgement.
Several persons read the dissertation and made
constructive criticisms and helpful suggestions and to each
of them I extend my gratitude. None of the above but
myself are responsible for any shortcomings displayed in
this dissertation.

Alef-Shah Zadran
July 15, 1977

xi
 LIST OF TABLES

Table Page No.

1 Temperature in 1969 in 12
Months in Centigrade . . . 13
2 Rainfall from 1971 until
1975 in mm .
• • . ··· • • · 13
3 The Prices of Animal Skins
····· 38
4 The Prices of Animals.
······· 38
5 A Comparison of Grain Prices
in 1935 and 1975
·· · ····· 39
6 Yields Per Jarib
···· 45
7 Fines for Injury of Human
Body Parts . . .
·········· 264
8 Fines Paid for Damage of
Animals and Trees.
···· 268
9 Analyses of Trouble Cases. 289

xii
 LIST OF DIAGRAMS
Diagram No. Page No.
1 Network Market . . .51

2 Zadrans' Genealogy . • .

3 Zadrans' Genealogy .. . 69

4 Zmel-Khel's Genealogy. 70

.5 Conangunial and Affinal

Kinship Terms in Almara. 80

6 Affinal Terminology . . .. . 81

7 Affinal Terminology . . .. 81

8 Segmentary Opposition. ... 11.5

9 The Politics of Patrimonial

Leadership . . . . . . . . . .... 134

xiii
 LIST OF MAPS

Map Page No.

1 Map of Afghanistan ......... iii

2 Ethnic Groups. . • . . . • . . . . • 21

xiv
 TABLE OF CONTENTS
Page No.
Abstract . . • . . . . . • . . . . • . • . . iv
Acknowledgement. .. ... . viii
List of Tables . xii

List of Diagrams . xiii

List of Maps xiv
INTRODUCTION . ..... 1

Chapter One: GEOGRAPHICAL AND HISTORICAL

SETTING: Geography, Climate,
History, Pashtuns' Origin,
Contemporary Pashtuns' Ethni~
Groups, Unjust Separation of
the Pashtuns, Almarwals' Origin. 10
Chapter Two: SUBSISTENCE TECHNOLOGY AND
LOCAL ECONOMY: Animal Husbandry,
Agriculture, Economy and
Market, Timber Industry, Ex-
change Relationships. . . . 30
Chapter Three: KINSHIP, FAMILY AND KINSHIP
TERMINOLOGY: Descent,
Allocation of Inheritance,
Inheritance Allotment,
Lineage, Household Type, House-
hol~ Family, Kinship Terminology,
Address vs. Reference Terms,
Affinal Terminology . • . . . . 56

Chapter Four: MARRIAGE: MEANING AND RULES:

Search for a Bride, Betrothal,
Bride Wealth, Virginity, Pasharak
(Freedom of Visit), Marriage
Ceremony, Polyganous Marriage,
Endogamy vs. Exogamy and
Hypergamy vs. Hypergamy, Divorce. 86

xv
 Page No.
Chapter Five: POLITICAL ORGANIZATION
AND POLITICAL BLOCS:
Segmentary Opposition,
Feuding (Dushmani), Warfare
(Luya Jagra), Factionalism
and Blocs, Patrimonialism
and Dawrah (Cycle) • . . • . • 112

Chapter Six: ISLAM,SHARIi, AND CRIMINAL .~

LAW: I8lam, Islamic

Jurisprudence, Its Develop-"
ment and Foundations, Sharia,
Figh or Islamic Jurisprudence,
Sources of Figh, Formation
of the Legal Schools,
Criminal Law. • . . • . 144

Chapter Seven: JUSTICE AND JUDGEMENT:

Classification of Legal
Systems, Definitions of Law,
Treatment of Universals, The
Concept of Law Implicit in
Actual Studies, Dispute
Settlement, Case Studies,
Jirgah, Maraka, and Tukhum,
~o_r and Spean Gundf'?, Spean
Saro (Men of the Truth),
Mediation, Arbitration, Hallal
Pakhawal (Slaughtering and
Cooking, Hospitality, Khalat,
Pashtun Tsali for the Settle-
ment of Trouble Cases, Theft,
Oaths and Ordeals, Mountain
Trouble Cases, Loan Cases,
Woman Cases, Woman Homicide,
Adultery, Rape, and Abduction,
Homicide • . . . . . • . . . . . 181

Chapter Eight: SU~~ARY AND IMPLICATION FOR

MODERNIZATION . . . • . . • 283
Appendix A: Additional Trouble Cases. 301

Bibliography . • . • . • ~'. . . . . 323

xvi
 INTRODUCTION

Objectives:
This dissertation is based upon anthropological
fieldwork carried out in the Pashtun village of Almara in
the southern foothills of the Suleiman range in south-
eastern Afghanistan. The village, with a population of
2010 is situated about twenty-five kilometers west of the
Durand Line, the border between Afghanistan and Pakistan.
The villagers are all Muslims of the Sunni sect and all
members of the community speak one language, Pashto.
This study is a "focused ethnography," with the
resolution of conflict as its central theme. The settle-
ment of di.sputes through indigenous systems will be
di&cussed. Extensive legal traditions such as Islamic
sharia and fiqh (Islamic jurisprudence) and Western laws
which are being currently enforced in the country in
general and within the village in particular, will be
explored and explained. The effects of these external
legal traditions on the native customary laws will be
examined. In essence, this study will provide the reader
in general with an ethnography of one rural area of
Afghanistan and of a people who have never received
anthropological investigation. It is my intention that

1
some generalizations made on the basis of the data from
Almara may concern other rural ~nd peasant communities in
the country.
The study works from a framework of traditional
ethnography which presents details of geography, history,
kinship, descent, marriage and kinship nomenclatur~ of the
people of Almara as well as their technology, economic, and
market systems and their systems of ideology and belief.
Chapter One deals with geography, climate, flora, fauna,
location and history of the community. Chapter Two
discusses the subsistence technology and local economy of
the people including systems of agriculture, animal
husbandry, forest and land ownership, lumber trading and
inter-and intra-national market network. Chapter Three
concentrates on kinship and kinship terminology, family
systems, patterns of households, allotment of inheritance
and the organization of lineage. In Ghapter Four the
rules and meaning of marriage, its stages, process and
types are discussed. Chapter Five focuses on political
organization, and political blocs. In addition, the
question of feuding and warfare are discussed in terms of
trouble cases. The politics of patrimonial ism and the
dawra (cycle) system as they operate at the national and
village level are explained. Chapter Six concentrates on
the meaning, structure and principles of Islam. Sharia
(Islamic law), figh (Islamic jurisprudence) major Islamic

2
schools and criminal laws are discussed. Chapter VII & VIII
constitutes the central point of this dissertation. It
deals with the resolution of conflict within and between
political communities. In this section the question of
settlement of trouble cases through mediation, arbitration,
negotiation, "intermediaries" and ordeal and oaths --are
discussed in detail. All trouble cases are categorized
and for each category its related tsale (code) is
identified and descriptions of trouble case~ are presented.
The rationale for doing a focused ethnography in my
own country is three-fold: (1) Anthropological studies of
the people are lacking. I have to note that even many
native Afghans from the capital city of Kabul and other
provinces in the country have little knowledge of their
own country, and people and their way of life. Due to this
lack of information there are many misconceptions about
them. (2) In the domain of anthropology as well as other
disciplines there seems to be developing a tendency toward
studies of the natives Qy the natives. Upon the end of
their studies scholars and scientists coming from the
third word trained in Eastern or Western highly industri-
alized nations should return to their countries. I
believe that the training of these scholars and scientists
will be most useful if it is incorporated with native
field work experience for the solution of problems in the
social scientists' country. (J) Another current trend in

J
 the social sciences holds that social scientists should
study the social problems confronting the people under
investigation. In my opinion the introduction of alien
legal systems and laws and the conflict between them and
traditional legal systems not only fail to resolve
. disp~tes but result in many intense conflicts and hpstility.
I, therefore, feel that this state of affairs jeopardizes
~he relationships between tribes or ethnic groups and
endangers the unity and social order of the country,
Thus, in the last section of this dissertation I offer a
set of suggestions which may be useful for this conflictual
situation.

Theoretical Framework and Methodology:

This study is based upon a framework of structural-
functional analysis. To descent theorists such as Fu~tes,

Goody, Gough or Gluckman, social structure is considered

one or another variant of the concept of (a) concrete
relations or groupings, socially defined, which (b) endure
over time (Schneider; 1969:26 and 72). To Radcliffe-Brown
(1952:10 and 1958:177) social structure is the network of
actual social relations; for Evans-Pritchard (196), it
is the enduring social groups, the concrete lineage (Kaplan
and Manners 1972:101).
For alliance theoriests such as Levi-Strauss, Leach,
Needham or Dumont social structure is the construct or
model which is fabricated by the anthropologist and which

4
 is presumed to have, as its concrete expression, the norms
for social relations and the rules governing the consti-
tution of social groups and their interrelations (Levi-
Strauss in Schneider 1969:26).
Functionalism in anthrop.ology draws on the organic
analogy. The functionalists think of sociocultural., systems
as though they were a kind of "organism" whose parts are
not only related to each other but, at the same time,
contribute to the maintenance, stability, and the very
survival of the "organism." Basic to all functional
explanations, then, is the assumption that all cultural
systems have certain functional requisites or needs
(whether they are social needs in Radcliffe-Brovm's opinion
or biological needs in Malinowski terms) --all of which
must somehow be met if the system is to continue as an
ongoing concern (Kaplan and Manners 1972:56).
I did not ignore the alliance theorists point of
view with regard to social structure. I realized the
importance of their theoretical framework particularly
with reference to the exchange of women among the Pashtuns
especially in instances of resolution of conflicts of
trouble cases. But I am mostly inclined in my theoretical
and methodological point of view toward Radcliffe-Brown
and his followers in this study. I believe that social
structure of Almarawals involves the network of their
actual social relations. There are rules which regulate
the relations between the members of the groups within and

5
between the villages. The community rules and network of
social relations have their own functions which facilitate
the maintenance of the groups and society,
The field work was carried out from September 1975
till September 1976. Being a native bilingual (speaker of
both Pashto and Parian or Dari) facilitated my research in
the village and elsewhere. I took down all of my field
notes in Pashto, the language spoken in the village.
Before going to the village of Almara, I had originally
selected the village of Spai-khel, where I have kinship
ties, as my research community. Because of methodological
reasons relating to research bias, I chose Almara where I
have no kinship ties as the site for carrying out ethno-
graphic field work. The village is one hundred kilometers
away from my home town, Gardez. In the village I lived
with the villagers and ate and slept in one of the men's
house (guest house). In the nearby town of Khost I was
given a room in an apartment (Government's Guest House) by
the governor of the Province where sometimes on Fridays, I
could get a shower and wash my clothes.
The information relevant to this study was collected
through participant observation, interviewing local
informants and lawyers, jurists and professors at Kabul
University. I attended sessions of conflict resolution
through mediation, arbitration and "intermediaries" based
upon the customary laws. I recorded how the marakachian
(members of the council of elders) reached decisions on

6
specific disputes. Scheduled interviews were used to
elicit statements about the structure and functioning of
the indigenous and Islamic' legal systems. At all stages,
informants were asked to illustrate any cited rules or
points of l~w by referring to specific cases heard within
their localities .during the last few decades. A consider-
able "amount of time was spent collecting different types
of trouble cases and I have relied heavily on oral
testimonies and my own observations. Moreover, the cases
were not gathered on any random sampling planj but I had
experienced prolonged immersion in the community as well as
in other parts of Paktya Province. Hence, I saw how
litigations were immersed in daily social life. I also
collected some of the relevant data from governmental
offices. Many documents and books written in Persian.
Pashto and Arabic were utilized for the completion of this
essay.
One of the problems I encountered in the field
involved the collection of recent trouble cases to help
illustrate legal rules elicited from local informants.
The reasons are two-fold: (1) the villagers usually
resolve their conflicts within or between the villages
through local mediators, arbitrators and/or "intermediaries."
Because of fear of the government they hesitate to report
those types of cases to individuals who come from a
different community. (2) The people involved in recent
trouble cases may still be alive and many of the trouble

7
cases such as a homicide, woman abduction or theft could be
very sensitive. Therefore, the informants usually avoid
talking about them. I ove"rcame this problem by maintaining
informants' 'anonymity. In this study I have only been able
to analyze 29 of the 41 cases. The other cases are still
sensitive situations regarding the parties involved.
Other types of problems that I encountered in the
village were related to my room and board and my personal
safety. The location of the village near the border of
Afghanistan and Pakistan, poor relations of the two nations
during my fieldwork, and the location of the village being
close to black market trade routes, (carrying of lumber
and other commodities to Pakistan) forced me to stay inside
a hamlet with one of the families. In one way I was lucky
because I was staying with my host family as one of their
household members, hence, I observed many things which I
could not otherwise see. An attempt to pay for one's stay
is considered a great insult to one's host. For example,
one day I bought a piece of meat (about twelve pounds) and
some fresh fruits from the nearby tovm and I brought them
with me to the village. When one of my hosts saw them,
he carried them home, but he was very upset and told me that
this should not be repeated.
In addition, I had my camera and tape recorder with
me. I could not use the tape recorder at all. I took a
few pictures of the village and of the villagers. In
essence, the villagers did not want their voice to be
recorded and their pictures to be taken for certain
reasons. Perhaps they were afraid that their pictures and
the tapes' will be given to the government for certain
purposes. I sh~uld note that thanks to Allah they were
not sensitive toward my notebook and pen.
Being a member of the society, though in man~ ways
beneficial to doing research, sometimes serves as an
obstacle against the researcher and makes one biased. A
native researcher misses many incidents and takes for
granted many things. I overcame this barrier by trying to
review Keith K. Otterbein's (1972) data sheet, to read
Phillips Steven, Jr. 's "A Check-list for Self-Evaluation
in Field Work," to read Notes and Queries in Anthropology
(1951) recommended to me by Ann McElroy when I was leaving
for Afghanistan in 1975. Another disadvantage of beir.g a
native field worker are the attitudes and expectations of
the people toward him. Some of the people in the
community thought I knew everything about their culture.
When I wanted the details of something they thought that
the question was silly. Although it was not easy to put
up with the situation, I managed.
To mention one further point seems worthwhile. In
this dissertation I have intentionally added some basics
of anthropology. This decision is based upon the assumption
that the essay might be read by some nonprofessional in
Afghanistan.

9
 CHAPTER I

GEOGRAPHICAL AND HISTORICAL SETTING

GeographY:
The Pashto-speaking peasant-tribal 1 people of
Almara village live in the southeastern region of Paktya
province in southeastern Afghanistan. The villagers
settled the low-lying terraces of rivers and creeks. The
valley is delimited by natural boundaries. The Shamel
River rises among high mountains in the Suleiman chains,
runs just through the southern edge of the village and
flows eastward, after passing the Khost Loy Woluswali,2
crosses the Durand Line of 189J and enters Wazirestan in
west Pakistan. Almara is surrounded by the Dawa Weeshti
Ghar in the north, Keprie and Pekie Kalie (villages) in
the east, Tara Gher J (Black Mountain) and Kikhie Kaiy
(village) in the south, and Dwamenda and Melwie (village)
in the West.
The Mountain system of Hindu KUSh 4 extends in a
west-east direction across the country, dividing it into
northern and southern Afghanistan. It is more natural to
speak of a tripartite division: the plains of northern
Afghanistan, the mountains of the Hindu Kush and the high
plateaus of southern Afghanistan. It is the high plateaus

10
of southern Afghanistan, the southern foothills of the
Suleiman chains, in which the Almara villagers are situated.
P) ,

The village is loc'a ted at 69 44 latitude east

<) ,

and)) )? longitude north. The valley bottom lies 1400

meters above sea level (Zarif 1976:143; the Afghan village
Atlas, vol. I, PF. 26). Almara has an area of abo~t 220
square kilometers.
So far an accurate census of the whole country has
not been estimated. 'lhe population of Afghanistan is 16,665,000
persons (Hakimi, 1977:ix). According to my estimation
the village of Almara comprises a census of 2,010 persons
distributed among 1)6 households. The population density
of the village is 9.1) per square kilometers.

Climate:
Climate is very much a function of altitude and
seasons. In fact the whole Paktya province has two kinds
of climates: the orographic 5 (the development and relations
of highlands and mountains) and the lower altitude types.
The temperature in higher elevations goes down below zero
degrees centigrade and snow falls during late fall, winter
and early spring. In the lower altitude areas the people
sometimes get rain instead of snow in the winter time. The
village under study although located in what is considered
to be a low-level zone in the Province, gets some snow
in the winter but it does not last for long. The Indian
Ocean Monsoon affects the climate of the village and the

11
villagers get some rain in the summer time. Annual rainfall
is about 269.8 mm subject to local and annual variation
and there are mainly three wet seasons, as fall rain,
winter snow and as spring rain.
In essence the village has four distinct seasons:
Spring, Sur.~mer, Fall and Winter. The duration of them
are about the same and each season lasts about three months.
Principal orographic vegetation of the Suleiman
chain and its foothills include oak, pine. cedar, olive,
fir, larch, yew and others (Dupree 197J:p.20). Within the
village in areas of common property and in front of the
homesteads of households are planted willow, poplar and
many different kinds of fruit trees such as pomegranates,
peach, cherry, pear, apples, grapes and others.
Foothills surrounding the area covered with such
trees provide fertile soil as well as bushes and grass
allowing the herders, nomads and semi-nomadic people such
as the Almara villagers to graze their herds in the
mountain pastures whenever the climate and seasons are
suitable for this purpose. The source of water supply is
the Shamel River and its tributary, the Tangie River.
The Shamel rises from the Tsatta Kandau Ghar (mountain)
and flows southeast toward Almara. The Tangie River
originates from the Tangie Ghar after passing the Tangie
valley joins the Shamel at Dawamenda located about eight
kilometers west of the village. The river maintains the
name Shamel.

12
 The following tIDIes indicate the average rainfall
and temperature reports prepared by the forecast station
in Dawamanda about 8 kilometers away from the village.
Tempe~ature in 1969 in 12 Months in Centigrade
Months Minimum Maximum

January - 1.72 +13.20 T&bie 1

February + 0.48 +13.80
March + 7.90 +23.90
April + 9.60 +24.90
May +1).20 +30.90
June +19.30 +36.30
July +22.90 +35.60
August +21.60 +3 4 .10
September +16.60 +32.40
October +12.10 +27.)0
November + 5.40 +22.30
December - 0.50 +16.90

Rainfall from 1971 until 1.4.9.7.c...5-=in:.:.-;m;.;.:;m~

.. __._ __
Months 1971 1972 1973 1974 1975

January ).7 2.1 Table 2

February 0.14 13.4 0.0
March 1.6 97.8 0.8 24.4
April 0.) 63.4 23.9 27·3 19.2
May 48.) 53.1 43.9 23.6 57.8
June 31.4 63.1 75.2 18.9 58.8
July 6.1 64.7 39.0 44.0 19.1
August 23.9 73.3 43.5 23.5 23.9
September 18.4 92.2 0.2 3.7 8.7
October 9.7 29.2 91.4 16.0 5.4
November 6.7 5.1 9.6 1.0 44.7
December 1.6 96.0 25.4 19.6 7.8
Total 146.4 455.4 467.0 180.5 269.8

13
 In the areas of higher elevation some snow
accumulates through the winter. The snow starts melting
in the Spring and ~ndures through the Summer time
providing the irrigational and drinking water supply for
the villagers and their animals. The village under study
is situated nineteen kms. away toward the west of the
Khost town and about one-hundred kms. eastward of Gardez
city, the capital of Paktya Province. The unpaved Gardez-
Khost road crosses the northern edge of the village.
The location of the village toward the northern
bank of the Shamel river which floods very often provides
fertile aluvial soil for the Almara peoples' terraced
farms. The land near the bank of the river is very often
endangered when the River floods. Many times the terraces
have been washed away but because of the scarcity of the
land the villagers spend years to rebuild and fix their
eroded land, make dikes and bring the plots agai~ under
CUltivation. Because of the nature of the fertile aluvial
soil of the area the Almarawal generally harvest two
crops per year depending on the type of crop, climate and
degree of rainfall.

History:
The Almara villagers are all Pashtuns who speak
Pashto and with the exception of the Turis in west Pakistan
all Pashtuns are Muslims of the orthodox Suni sect. The
word "Pathan," which is applied to the Afghan 6 in India

14
and Pakistan, is the corrupted form of "Pashtun" or
"Pakh tun. ,,7
Yaghistan, as the Amir Abdur Raman referred to his
country, partic~larly the tribal belt between British India
and Afghanistan, has been variously translated: "the Land
of the Unruly," ~'Land of the Free," "Land of Rebel~_"

•. . (Coon, 1951b:pp. 295-323; Dupree 1973:pp. xvii).

The name Afghanistan derives from two Pers~~n words,
"Afghan" and "stan" (place or land), which simply means
"land of the Afghan." Some non-Afghans such as Iranians
confess, at least half jokingly, to believing that Afghan 8
may have derived from the Persian word "afghan" (spelled
the same as Afghan, (iJbJ,), defined as "noisy," "groaning"
or "wailing."

Pashtuns' Origin:
The ethnic origin of the Pashtuns (Pakhtun or Afghan)
has not been satisfactorily established. In the past,
most Afghan authors traditionally ascribed a Jewish origin
to their people. According to this tradition, the Pashtuns
were the descendents of the Beni-Israel, who were deported
by Buktanasar (Nebuchadnezzar) to Hazrajat, believed to be
the Arzareth of the Bible. The western writers who
accepted the theory of the Jewish origin of the Pashtuns
have tried to substantiate it by invoking several factors
such as the Afghans legends and geneologies, common
Afghan and - Hebraic nomenclature such as Suleiman, Yusuf

15
and Daoud for Solomon, Joseph and David; physical
resemblances between Afghans and Jews; certain tribal
customs and occurrence of the name Kabul in the Old
Testament. 9
Modern scholars trace the Pashtuns to the Irano -
Afghan and Bakhler - Afghans branch of the Indo-Eurppean
or Aryan peoples. Habibi (1975:24-29) tells us that even
before 4000 B.C., a group of tribal people called the
Aryans were living in a place named Aryana-Vega, simply
meaning the homeland of the Aryans, "noble men." There
are four principle opinions as to the location of Aryana-
Vega:
(1) Baltic Ocean coast
(2) Northern coast of the Black Sea
(J) Northern coast of the Caspian Sea
(4) The Pamir area where the Amu Darya (classical
Oxus) originates.
The impetus for the initial migration has been
attributed to either (a) population increase and consequent
food scarcity; or (b) a climatic change resulting in a
general cooling trend: or combination of these factors.
The migration apparently began around 4000 B.C. and
the people headed toward Bakhdai (U~) or Bakhtria, the
present capital of Balkh Province in northern Afghanistan.
There they developed the Aryan civilization and built up
the very large and famous walled city of Bakhdi, Ommul-Belad

16
meaning the "mother of cities." The arrival of' these
central Aryan people to Ommul-Belad is estimated at 2500
B.C.
Habibi (1975) and many other historians believe that
the Central Aryans conducted another migration around 1400
B.C. and separated into three major groups each following
a sep~rate migratory route.
The first group, Central and Bakhterian Aryans
occupied the northern and southern foothills of the Hidu
Kush. Their homeland is said to be the area between the
Indus, Ouxus and the Khurasans deserts and included
Bakhtria (present day Bulkh), Takharistan, Harat,
Arakusia, Kabul, Kandahar, Sistan and Khorasan. The
southern boundary was delimited by the Arabian Sea.
The second group of immigrants, the Iranian Aryans,
went toward the southwest and occupied the Fars Land,
constituting"present day Iran. Historians hold that this
migration lasted from 1400 B.C. until 800 B.C. The first
state created by them in Iran was called the Medic state.
The third group of Aryans in Bakteria, Indian
Aryans, passed the Hindu Kush range and via the Kabul and
Khaiber passes penetrated the Indus valley to the Ganga
River.
Grostawlabon (in Habibi 1975:24) tells us that before
dispersion and emigration from Aryana-Vega, the Aryans
spoke a specific language called Aric. Sanskrit originated
from this now extinct Aric language.

17
 As was mentioned earlier one group of the Aryan
stock, the Sanskrit-speaking Indo Aryans, left Bakhtria
and moved toward India. The second group spoke Old
Persian, the predecessor via Pahlawi to present day
Persian. A third group. of people who remained in Bakhdi
(Balkh), are called Bakht = Pakhal = Pashtun and they must
have had their own distinct language. Since these people
still have kept their historical name and speak Pashto,
their language must have been Pashto (Habibi 1975:24).
The Rig-Veda, another Indo-Aryan religious book,
composed around 1400 B.C., mentions the Pakhat name. By
inference we may associate this central Bakhterian group
with the Pashto language. This view is supported by the
facts that there is no evidence for either a mother
language to Pashto or for a pr~o-Pashto language.
There is historical evidence which indicates that
after 1400 B.C. Bakherian Aryans or the Pakhat tribes
went toward the eastern mountains of Afghanistan and
settled along the Indus River. The Rig-Veda tells about
a battle among ten tribes, one of which is the Pashtuns.
Both the Awesta, another religious book written in Zand,10
and the writings of Herodotus, mention the Pakhat or
Paktwees name and indicates their being on the Indus River
Bank around 520 B.C.
Reviewing all this historical evidence enables us
to conclude that Pashtana (Pashto plural form of Pashtun)
Aryans at the very beginning were living in Bakhteria

18
(Bahhdi) and after their habitat name they were called
Pakht (~. ) or Pakhat ( J ' ) .
~ ~
These people moved out
from their original place from 1400 B.C. to 1000 B.C. and
dispersed over Afghanistan's eastern mountains and reached
the coast of the Indus River. Throughout they kept their
nationality and nation's name Pakht or Pakhet = Pashtun
and their language, Pashto till today (Habibi 1975:22-27).
According to Gregorian (1969:29-30) the earliest
mention of Afghans (Pashtuns) in Muslim sources is to be
found in the work of the Arab chronicler Ibn'l Athir (976)
and in the anonymous Persian geography of Hudud al- Alan
(982). In the Persian work the Afghans are described as
a small population inhabiting the region of the Suleiman
Range. Much later, al-Biruni identified various Afghan
(Pashtun) tribes located along the frontier of western
India (western present Pakistan). Ibn Battuta, who passed
through Kabul in 1333, claimed that he met a tribe called
Afghans who lived in the Suleiman Range, and possessed
considerable strength. Gregorian believes that for the
most part, the expansion of the Afghans (Pashtuns) from
the area of the Suleiman Range between the eleventh and
eighteenth centuries and the nature of early Afghan society
remains unstudied.

Contemporary Pashtuns' Ethnic Groups:

There are several major ethnic groups within
Afghanistan of whom the Pashtuns are the largest and most

19
important. The term "ethnic group" is generally understood
in anthropological literature (Naroll 1964:285) to designate
a population which:
1. is largely biologically self-perpetuating
2. share fundamental cultural values, realized in
cultural forms
J. makes up a field of communication and interaction
4. has a membership which identified itself, and is
identified by other categories of the same order.
The major tribes constituting the Pashtun ethnic group are
the Abdalis or Duranis, the Ghilzis and others. Duranis
are subdivided into seven subtribes: the Popaalzai,10
Barakzai, Alizai, Nurzai, Ishaqzai, Achakzai, and Alikozai,
The Sadozai (an offshot of the Popaalzai subtribe, and the
Muhammedzai clan (an offshot of the Barakzai) are the two
Afghan royal clans; with some brief interruptions, they
have alternated (except for the last five years) on the
throne of Afghanistan for the last two centuries.
The Ghilzais are the second largest Pashtun tribe in
Afghanistan. Suleiman-Khel,11 Hotak, Tokhi, Andar,
Ali-khel, Nassiri and Taraki are the subtribes, or better
called lineages of the Ghilzai tribe.
The other important Pashtun tribes are the Waziziris,
the Khattaks, the Afridis, the Mohmands, the Yusufzais,
the Shinwaris, the Khugianis, the Safis, the Ahmadzais,
the Mangels, the Zazis and the Zadrans.

20
 ..
c
ell
~
l'C

(rrpm Dupre~ , , 97, )

:Iap 2

21
 The non-Pashtun ethnic groups are the Tajiks, the
Hazaras, the Turkmans, the Uzbeks, the Qazaqs, the
Naristanis, the Aimaqs and others.
The Pashtuns constitute a large, highly self-aware
ethnic group inhabiting adj"oining areas of Afghanistan
(east, southeast, southern and other parts of Afgh~nistan)

and west Pakistan presently called Pashtunistan. They are

generally organized in a segmentary, replicating social
system without centralized institutions (Barth 1969:117;
Zadran 1974:17-18).

Unjust Separation of the Pashtuns:

The Pashtuns of Afghanistan and Pashtunistan (west
Pakistan) were separated politically, forcefully and
unjustly from each other with the (artificial) signing of
the Durand Agreement by the Afghanistan Amir Abdur Rahman
(1880-1901) and Britain on November 12, 1893. The Durand
Line, named after Sir Mortimer Durand, Indian Foreign
Secretary, sets the northeastern and southern borders for
Afghanistan.
Dupree (1973:425) writes about the Durand Agreement
and its causes as follows:
The British in India, happy at creating a no
man's land between themselves and Tsarist
ambitions, faced other problems. The Pashtun
tribes, almost genetically expert at
guerrilla warfare after centuries of
resisting all comers and fighting among
themselves when no comers were available,
plagued attempts to extend Pax Britannica
into their mountain homeland. Many raids
into the Indus Valley plains originated

22
 outside the range of effective punitive
action. As early as 1877, the British
began their consolidation of a forward
wall or protective outposts by outright
bludgeoning of local Pashtun rulers.
In 1877 they simply informed Amir Sher Ali
that he had no claims on Dir, Swat,
Chitral and Bajaur.
In 1879. the British forced the Amir Yoqub,
son of Sher Ali, to sign the Treaty of ,
Gandamak under which the British will
retain in its own hands control of the
Khaiber Pass and Michni and of all relations
with the independent tribes, territory
directly connected with passes . . Therefore,
the treaty ceded large tracts of land in
the districts of Loralai, Zhob, Pishin,
Quetta, and Nushki, presumably giving legal
justification for as much as the British
could occupy and hold.
Dupree goes on and tells us that because of the
annual incursions by the tribes, the British attempted to
push the Forward Policy once more under Lord Landsdowne and
appreciably increased the size of the British Indian Army.
constructed strategic cantonments at Rawalpindi, Attock and
Quetta and built a railroad to Chaman.
Amir Audur Rahman Khan, son of Mohammad Afzel, Sher
Ali's grandson resented British encroachments in the
Pashtun tribal area. He viewed both Russians and British
people with apprehension and repeatedly in his auto-
biography (1900) states that he never considered any
Pashtun areas as permanently ceded to the 3ritish. In
1892, he attempted to establish direct contact with London.
Because of pressures from London the Amir agreed to
receive a mission under Sir Mortimer Durand in 1893. The
Durand mission went to Kabul in September 1893 in order to

23
delineate once and for all British and Afghan responsi-
bilities in the Pashtun area. During the negotiations
both sides agreed on a boundary from Chitral and Baroghil
Pass up to Peshawer, and thence up to Koh-i-Malik Siyah.
Based upon this agreement Wakhan, Nuristan, came under the
Amir's rule and he renounced his claims for tr·' r[' iJ.way
station of New Chamah, Chagai, the rest of Waziri, Biland
Khel, Kurm, Afridi, Bajaur, Swat, Buner, Dir, Chilas and
Chitral. In this manner the Pashtuns of Afghanistan and
Pashtunistan, although the Amir never seemed to accept
the proposed divisions, were separated by force into two
political entities.
"The Durand line," writes Sir Fraser-Tytler in his
book Afghanistan,
Though perhaps in the circumstances the
best line possible, has few advantages
and many defeats. It is illogical from
the point of view of ethnography, of
strategy and of geography. It cuts
across one of the main basins of Indus
watershed; it splits a nation into two,
and even it divides tribes (in Amin and
Schiz 1976:19).
The line which cuts off about eight millions, the Pashtuns
and Baluchs, from their national government, has been the
primary cause of conflict and frontier troubles between
Afghanistan and Pakistan until present.

Almarwals Origin
---
The origin of the Almara 12 villagers is obscure.
The inhabitants happened to be composed of five different

24
lineages of the Zadran tribe. Their homeland used to be
the valleys of the Suleiman Range of southeastern
Afghanistan. My informants uniformly gave me the following
information about their origins and it seems consistent
with Habibi's (1975), Barth's (1969) and others' state-
ments: "Our first ancestor came to Afghanistan frq~m

Margha or Luk Largy or Birmel situated in Wazeeristan,

present Pashtunistan (west Pakistan)," said several men.
"He was called Baid (J!!. ), Tsarabrang's son. Tsarabrang's
(known in the history of Pashto literature as Tsarban)
tomb in is Margha."
There are five different lineages living in Almara
today, The first two to inhabit the village are the
Zmel-khel and Namet-khel. Then two other lineages called
Babur-Khel and Sadi Khel came to the village. Because of
the scarcity of land for cultivation on the one hand, and
lack of mountain pasture for the grazing of their sheep
and goat herds on the other, the villagers entered into
many conflicts and fights among themselves and engaged in
warfare with the neighboring people of Ismael-khel. At
this time a fifth lineage, originally being Sayeds now
consider themselves Zadran, called Khoydad khel, entered
the village and resided in the east part of the community,
and provided a buffer zone between the Almarawal and
Ismael-khel on the one hand, and mediated the conflicts
among the villagers on the other hand. Allegedly
descendents of Prophet Mohammad, the Sayeds are respected

25
among all people in Afghanistan, and they have traditionally
served as mediators. People in Almara 13 believe that
after the resettlement of the fifth lineage in the village,
the social atmosphere of the area became friendly, or at
least the number of events considered conflicts was
reduced.
In this chapter we discussed the geography, location,
climate, fauna and flora, history, Pashtuns' origin,
contemporary Pashtuns' ethnic groups, unjust separation
of the Pashtuns and the Almarawal's origin. The following
chapter deals with subsistance technology and local
economy of the Almara villagers.

26
 FOOTNOTES FOR CHAPTER I

1For more detailed attributes of the peasants-tribal

society, see Louis Dupree and Linette (1974:1-12).

2A Loy Woluswali (sub-Province) is a second degree

governmental administrative unit. Below the National level,
the basic administrative area is the Wilayat (province).
There are 27 provinces in the country now and each of them
is governed by a Wali (governor).

3Because of its far black sight it is called Tara

Ghar or the Black Mountain.

4 The Persian name Hindu Kush, simply meaning "kills

the Hindu" is a grim reminder of the days when many
Indians died in high mountain passes of Afghanistan on their
way to the slave markets of Muslim Central Asia. It is
also believed that Hindu Kush is probably a corrupted form
of Hindu Koh (Hindu Mountain), name of the mountain range
which, in Pre-Muslim time, divided the area of dominate
Hindu control to the south and southeast from the non-Hindu
areas of the north, whose people were probably Zoroastrians
and many have later developed into the modern Tajik.
According to Dupree (1973:1) another possibility is that
Hindu Kush means "water mountain." The Avestan Hindu may
be an equivalent of the Vadic Sindhu, which also means
water or river. In this sense it is because of the fact
that many rivers in the country rises from this mountain
range.

50f or pertaining to orography: concerned with the

physical character. features and relative position of
mountains. The Compact Edition of the Oxford English
Dictionary, 1971, Vol. I, Oxford University Press.
6
Based upon the Afghanistan Constitution 1964 and 1977
each citizen in the country is an Afghan.

27
 7There is an interesting legend in this connection.
It is related that the Afghan Malik Qais, at the
invitation of Khalid-bin-Walid, historically famous Arab
officer, went to Medina to me~t Prophet Mohammed. The
Prophet gave him the Arabic name Abdur Rashid, on account
of his bravery in the battles against the Qureshs of
Mecca, remarking that the attachment of the Afghans to
Islam would be in strength like that of the "pathan," the
wood upon which the keel is laid while constructing a ship.
On this account Abdur Rashid was given the title of
Pathan.

8The Aranians justify their theory with fact that

the pattern of Persian poetry more p~obably accounts for
the "wailing" originally faghan (0 IV ), meant "wailing."
To improve the rhyme and rhythm, Persian poets added the
alif of a "a" to form the. poetic "afghan" (U ,:.~ I ) • Another
example is "ferishta," ~j " (angel) which poets changed
to "afrishta," ~')J .. L. Dupree, Afghanistan, Princeton,
197.3, pp. xvii.

9It is very hard to find convincing evidence to prove

a Jewish origin of the Pashtuns. There is certainly no
relationship between the Pashto and Hebrew languages; nor
can reliance be placed on Afghan tribal genealogies, in
which facts and chronology are often neglected in favor of
legend. A plausible explanation for this theory has been
advanced by some scholars, who maintain that the Afghans
may have desired to provide a common cultural and ethnic
bon d between themselves and other Pashtun tribes in order
to promote unity and to inCUlcate pride in their alleged
pro-Islamic monotheism. (Gregorian 1969:27)

lOA language spoken around 1000 B.C. in Bakhteria

(present Balkh in northern Afghanistan).

llThe suffix - zai means born of or the son of.

12The suffix - khel means lineage.

l.3There is an interesting legend about the nomenclature

of the village. It is related that a woman called Almara
originally came from Ismael khel (a tribe situated about
5-8 kilometers east of the village) was married to a Zadran
tribesman. The couple had neither a residence nor land.
They had a number of sheep and goats and were living in a
kizhdy (a tent made of goat wool) in the area of Dwamenda,
about 8 kms. west of the present Almara village. One night
the woman's brother and several other relatives came to

28
 their kizhdy and spent the night over there. The couple
slaughtered a sheep for them, served them good food and
kept them very happy and comfortable. Based upon the
Pashtuns norms, when a relative visits his close agnatic
female relative in her house, the male takes something such
as sweets and clothing, called khwaga, kali and teekry in
Pashto - with him to offer her as a gift. Since these
people also joined their female relative and with a very
warm welcome, in the morning when they were leaving the
tent they offered the woman a gift but it was neither sweet
nor clothing. Since the couple had neither residence nor
a piece of land, the woman's relatives asked what did she
want for teekry? The woman refused to accept any kind of
gift, but her relatives insistingly asked her to consult
her husband and make a decision with him what is their
crucial need and what did they want. The husbann told his
wife to ask her relatives to give her a piece of land where
they could erect their tent. The wife did so. The couple
had an old and thin horse. The woman's relatives simply
asked the husband and the wife to ride on the horse
together and lead it on the land of the Asmael-khel toward
the town of Khost until the horse stops. The couple rode
the horse and started their journey from Dwamenda on
Asmael-khel land face towards the town of Khost. When
they arrived to the Kapry Kaly (village) the horse stopped
and fell down. Thus the area between Dwamenda and Kapry
Kaly was given to the woman and hence after her name it was
called Almara.

29
 CHAPTER II

SUBSISTENCE TECHNOLOGY AND LOCAL ECONOMY

The term "subsistence technology" refers to the

"activities which people perform to exploit their environ-
ment in order to gain a livelihood." (Otterbein 1972:16)
The term "economics" implies the study of wide-range
organization of production, distribution, consumption and
natural resources. In this chapter I show how the
technology of animal husbandry and agriculture of the
Almarawal work. I also deal with the question of how
people manage to extract the physical necessities of life
from their environment; here we are concerned with the
means by which resources are exploited and the kinds of
social activities involved in production. Moreover, the
question of what is done with the goods after they are
produced is discussed. In the end of course, they are
(mostly) consumed, but often quite complex mechanisms of
distribution and exchange are involved and we describe this
complex system of exchange, which is called network market,
last.
Of the four types of subsistence technology, hunting-
gathering, horticulture, animal husbandry and agriculture,
the two latter forms are commonly practiced by the Almara

JO
villagers. An occasional villager carries a shotgun on
his shoulder searching for ducks, wild pigeons, sparrows
and partridge. Several people own Afghan hound dogs to
hunt rabbits for their meat and foxes for their fur.
During the Spring time teenage girls in groups of five to
ten, gather fresh young plants (bashkay) which gro~ in the
farms as wild herbs. The villagers also very often
consume fresh clover in early Spring and late fall or
whenever the vegetation is young and fresh. However,
because of their small contribution to the villagers'
everyday dietary system, hunting and gathering can be
excluded from the villagers' sUbsistence technology.
Hunting with nets, traps, shotguns or dogs seem to be
conducted more for sport and leisure, rather than for
sUbsistence.
Lack of the digging stick and hoe, and also the
absence of swidden farming, precludes these people from
being classified as horticulturalists.

Animal Husbandry:
The peasants breed and raise domesticated animals.
The most common are cattle, goats, sheep, camels, donkeys
and dogs; fairly common also are chickens. Of these
animals, cows and goats are most significant, and are
greater in number. There are a few households in the whole
Zadran area that still practice their fathers' and
ancestors' sheep breeding occupation. Goat raising is

31
still very common in -the area and in neighboring
communities such as the Mangels, but goat herds (there)
are small.
I was told several times by the villagers that their
ancestors from their original places, Mergha or Woch
Largia or Birmel, located in Waziristan, west Paki~tan,

had large flocks of sheep and some goats. The movement

from breeding sheep in the Waziristan area to goats in
the present Zadran habitat is likely due to the impetus of
the physical environment where they now reside. The area,
being very mountainous, seems not to be useful and
practical for sheep breeding, since they cannot graze
easily while carrying tails weighing about 10 to 15
kilograms. The sheep is a medium-sized, domesticated
ruminant of the genus Ovis oretalis highly prized for its
flesh, fat, wool and skin. Moreover, the absence of
permanent pastures and presence of small oak trees are
likely to encourage the raising of goats. The weather,
cold in the winter, is also not conducive to sheep
breeding.
In any case the number of these animals being raised
by the villagers as compared to two or three generations
before is significantly reduced, and people have turned
increasingly to agriculture in order to compensate for the
loss of animal products. This represents an obvious shift
from animal husbandry and a seminomadic way of life to
agriculture and sedentarism.

32
 The goats of the Almarawal (the people of Almara)
are sma'~ and thin. A goat weighs from 30 to 40 kilograms
depending on the sex of the animal and the season, which
determines the availability of grass, herbs, ghania (oak
small branches and leaves) and other types of fodder.
During the spring goats graze in the areas neighboring
,
village on the hillsides or in the farms and very often
eat wild grasses and herbs available. They are not fed
by their owners.
Summer is a harsh time for the animal fodder. Some
of the householders in the village, because of the high
temperature, lack of fodder for their livestock, and
because men must engage in falling trees for the lumber
trade, leave their hamlets and spend the summer in the
mountains in bandas (huts made of stones, mud and
branches).
Fall is a pleasant season for the people and their
animals. It is called was, harvest time. Young boy
shepherds between 15 and 25 bring their animals immediately
behind the harvesters to graze on the stubble, as in the
rest of the country and elsewhere in the Middle East all
harvested land becomes public grazing areas where any
shepherd may graze his goat-herds, sheep-flocks and other
animals.
Winter also is harsh, and a time of scarcity of
fodder, particularly for the goats. Only oak twigs and
leaves (ghania), corn stems and collected fruit tree leaves

33
are available for goats. The wheat and rice hay and dried
clover and alfalfa are given to cows, oxen, donkeys and
camels. Most of such forms of fodder are brought to the
village from other parts of the country such as Gardez,
Kandahar and elsewhere.
Cows are the sec~nd most important animal, for
,
dairy products and meat. An average cow weighs from 72 to
94 kgs. Each cow is milked five times in twenty-four
hours during the first two to three months after giving
birth to a calf. Later on the number of milking times is
reduced until the cow is in its seventh or eighth month
of pregnancy. During the first days of milking each cow
gives about one Kg. of milk five times in twenty-four
hours. Most households in the village own one to three
cows and three to seven goats. Women, in addition to
conducting the family affairs as housewives, are also
responsible for milking and feeding the goats during the
winter. Other animals such as cows and oxen while kept at
home at all times are also taken care of by women. When
the householders and their animals are in the village,
their cows stay in barns (sturga) inside the hamlet (kala),
particularly during the winter. In summer both types of
animals while they are in the village stay in shelters
called seyuria (shadow) made of twigs and leaves.
Moreover, each family owns an ox or two for plowing
and two or three donkeys for milling, transportation of
animal fertilizer and manure to the farms, and transportation

34
of firewood from the mountains. Some families ovm one or
two camels, depending on the number.of adult males in the
household. Camels are used for heavy transportation,
commerce and lumber trading within Afghanistan and Pakistan.
For each herd of goats and sheep, averaging from
eighty to two-hundred animals, the people think it .,is
sufficient to ke0p from three to four stud males. Breeding
is controlled for ~oats and sheep as well as cows, to the
extend that impregnation is prevented in the summer time
to avoid lambing and calfing during the winter, when the
risk of loss is greatest. For goats and sheep, breeding
is prevented by a piece of cloth tied under the belly of
the woz (goat stud) and mug (sheep stud), covering
the genitals. In the case of cows, the skhwender~ (bulls)
are kept away to avoid impregnating the females. Very
few families keep bulls and these families are reluctant
to have their animals mate with the cows because they
believe that by doing so, when thl-; animal becomes an ox
it will not be a strong one.
The best time for lambing and calfing is the first
month of the spring season (April). At this time snowfall
stops; the temperature does not fall below zero Centigrade,
the herbs and grasses revive, and the risk of loss for
animals is lessened.
Shearing of sheep and goats is generally done in
the middle of spring and fall if the herders are leaving
for Pakistan to spend the winter there. If the herders do

35
not move the herds to Pakistan in the winter time, the
animals are not sheared in autumn so that they are
protected in the slightly colder winter of Almara.
The shearing is done by both men and women. The
wool is transported to Kabul, the capital city of the
country to be exported officially, or the ovmers themselves
export it on camelback to Pakistan where they can sell it
for a higher price. A part of the wool is utilized in
the household to make leamtsia and tagher, special types
of carpets or rugs.
Milking of goats, sheep and cows is women's
responsibility. Even if the herd is large and the herders
must move to mountains when the climate permits, or when
they go to Pakistan, a part of the family including some
adult females also move with the herd and do the milking
and butter churning.
The most expensive dairy product is butter. After
milking, the product is boiled up and poured into separate
pots of about two to four gallons each. When the milk
relatively cools off, the housewife adds some yogurt, as
yeast. After 10 to 15 hours the milk becomes yogurt, and
is ready to be served or churned.
In the area under study and some other regions in
Afghanistan the people often use a goat skin (Zhay) to
churn butter. Still in some other parts of the country
the people use a ceramic jug (zagai).
 The zhay and/or zagai, filled with yogurt and water,
is set on a cushion and the squatting women move the
containers back and forth for two to three hours.
Occasionally more water is added. When the butter is
separated from the remaining part of the yogurt, which is
called terway, (or shrombay in Pashto) the butter is
, kept
in a separate pot and shrobay is served by members of the
family.
With about 20 to 30 kgs. of butter (eoch) the house-
wife melts the butter and makes ghee (ghwari), or
clarified butter from it. Ghee is expensive and if there
is more ~han what the family needs, it is sold in cities
like Khost, Gardez and Kabul, bringing in substantial
extra cash. Ghee is served to the household woman when
she gives birth to a child. At this time women believe
other types of oil are harmful.
In reality, although the people may not be conscious
of the fact, intake of ghee during labor, when the woman
needs more calories and comfort, provides her at least
with the minimal amount of calories required.
The skin of cows, oxen, sheep, goats and camels are
also a good source of income for the villagers. Skins are
collected by traders or by the villagers themselves and
are taken to Kabul or are transported to Pakistan and sold
there for higher prices. The following chart indicates
prices for the skins of different animals in Afghanistan:

37
 Animal Price 12er skin in Afs.
(55 Afs.· = $1 )
Camel 500-700
Ox 400-600
Cow 300-500
Sheep 70-90
-.
Goat 60-80 Table 3
Each family has from 10 to 25 chickens, raised for
their eggs and meat. A hen lays from 220 to 270 eggs per
year. Hens lay few eggs during the winter, due to
temperature and scarcity of food. One of the main reasons
for raising chickens in the village is to keep ready the
ingredients of a meal for visitors. Particularly in the
rural areas, visitors do not notify their hosts in advance,
as they generally are sure those persons will be at home.
So when a guest comes, a hen or a rooster will be
slaughtered and some rice and beans will be cooked and
dundakia (rice with ghee or soup) will be served.
The following table shows a comparison of prices of
animals in forty years:
Table 4 1935 1975
1. goat 10-15 Afs. 1200-2000 Afs.
2. sheep 20-25 )000-5COO
3. cow 40-50 2000-8000
4. ox 60-100 3000-10000
5. donkey 5-6 1500-2000
6. camel 160-250 25000-35000
7. hen ·50 70-80

)8
 The following chart shows a comparison of the grain
and ghee prices in 40 years in sares (1 sare = 7.66 Kgs.)

Table5 1935 1975

wheat 2 Afs. 65-70 Afs.
corn 1 45-50
rice 1.50 60-65
ghee 10 1100-1200
Until a few years ago the camel was the most common
means of heavy transportation. This tradition came from
the ancestral seminomadic and pastoral way of life.
Nomadism and pastoralism due to the lack of roads in the
area necessitated the householders having several camels
to transport their belongings, children, some women, sick
and elderly individuals, newborn lambs and goats, and sick
animals. In recent years due to the use of more wood in
the settlement constructions, furniture, and truck body
industries, the price of wood went up drastically in
Afghanistan and Pakistan. Having evergreen forests on the
one hand, and shifting from a seminomadism and pasturalism
to agriculture and wood commerce on the other, motivated
the people to keep camels.
Men go to the mountains to cut cedar; black, white,
red and pitch pines, and different types of spruce trees,
and for lumber which is sold in Pakistan fora higher price.
The remainder is taken to Gardez, Kabul, Kadahar a~d other
major cities in Afghanistan. Parts of the branches, bark
and roots of these, and oak trees as well, are taken as

39
firewood to the major centers by camels or trucks,
particularly in the cold winter. Other parts of the
branches, bark and roots are burned in the mountains to
make charcoal (skara) to be sold in the cities.
In recent years one camel load called waria of
lumber costs about 20,000 to 30,000 Afs. ($1 = 55 Afs.)
",

in Pakistan and about 2,000 to 5,000 Afs. within the

country.
After the coup de tat of 17 July 1973, the new
government established an agency to buy all the lumber
made by the Pashtuns of the Suleiman foothills in east
and southern Afghanistan. During the first days of the
establishment of the agency, from fear of the new regime
the people obeyed the law and cooperated. Then Bhuto's
government in Pakistan intentionally and of course
vindictively increased the price of wood and left the
border open for the Afghans to sell their lumber there, in
order to create a state of conflict within Afghanistan.
Bhuto's government succeeded in this design and the new
agency established for the purchase of lumber within the
country failed to control the illegal flow of wood from
Afghanistan to Pakistan.
At the present time, due to the increase in wood
and lumber prices within the country and Pakistan, plus
the construction of better roads which are linking the
forest areas to the nation and its borders, many people
in the village have bought trucks. But the camels are

40
still the second major means of transportation in the
Zadran area and some other provinces in the country.

Agriculture:
Theform of cUltivation practiced among the Almara
-..;
villagers is intensive tilling. The major agricultural
"-
tools are the nail-plow (yew in Pashto and aspar in Persian);
zhagh or jagh (yoke), an implement which is set on the
necks of the draft animals with a plow fastened to it;
and mala (.J 1.0 ), a flat piece of wood about one to two
square meters broad and three to five centimeters thick.
After the land is plowed the cultivator levels the land
tract with mala by riding on it upright, leading the draft
animals. In Almara, oxen are driven back and forth on
the field until the furrows become leveled, the big pieces
of earth softened and the seed covered. Various kinds of
sickles, shovels and pickaxes are other important
agricultural instruments.
Among all these implements the plow is the basic and
most important one used by the peasants in Almara. It is
made by the peasant himself out of wood gathered in the
mountain forests or trees planted in areas near the village,
while the plowshare is made by a blacksmith in another
Zadran locality, or purchased in cities or tovms.
The Afghan nail-plow cuts the surface soil about
fifteen to twenty centimeters deep and mostly does not
turn it up. Its performance is very slow, and hence

41
plowing is a tedious job for the cultivator and his draft
animals, but it does a job as thorough as that
accomplished by a combination of modern machines.
The tracts of land are permanent, owned by the
native families and are kept fertilized with animal manure.
In very recent years chemical fertilizer was introd~ced

into the area by the Ministry of Agriculture, but as yet

it is not commonly used by the villagers. Almara, a village
possessing too little land in proportion to its expanding
population and with each family owning a few animals for
dairy products and transportation, in reality does not
need the chemical fertilizer. Moreover, the soil in the
area is alluvial and very fertile. Most of the families in
the village have less than three jaribs (one jarib is
equalled to 2,000 square meters)arable land. In the
process of cultivation men are responsible for plowing,
leveling with the mala (,Ji1), sowing and harvesting. If
the land is located close to the hamlet the women carry
manure and dung in a special type of basket called shkaria,
on their heads or shoulders- Women also help the men during
the harvest time in threshing the wheat, corn and paddy.
The wives, daughters and sisters very often accompany
their husbands, fathers and brothers to the fields, bring
them tea, food, portable farm tools, and seeds, and they
collect root crops such as potatoes, cherots, onions,
tomatoes and others.

42
 Considering the time spent at the various jobs, men
play the dominant role in sUbsistence pursuits, both in
agricultural and animal husbandry.
Men are mostly engaged in agricultural tasks such as
plowing, the harvest, making new fields, raising animals
and cutting trees, while women are responsible for.Fearing
children, conducting the house affairs, and occasionally
accompanying the men at the harvest time. Boys serve as
young shepherds, take food to the farms to their fathers
and brothers, and help them in harvesting and threshing
the rice and wheat crops, while girls help at home by
taking care of their brothers and sisters while the
mothers are busy, and carry water from the waterhole, the
stream and the river. Except for the educated portion of
the population (ten persons, officials and students) the
division of labor, the allocation of tasks, is based upon
age and sex.
Privately owned land is held by men and inherited in
the male line. Land is not sold to or purchased from
anyone except close agnates and close members of the lineage.
Because of the scarcity of cultivatible land, the arable
fields are considered by the Afghans in general and the
Almara people in particular as one of "the three Zs":
zan (woman) I zer (precious items such as silver and gold),
and zameen, meaning land. Unless the needy person cannot
find any other alternative and must sell it, the owner

43
seldom sells his land. Selling the land inherited from
one's father is generally considered to be shameful.
Almara villagers mainly cultivate cereals, of which
wheat, corn and rice are the most important and common.
The community bases its agriculture on a natural water
supply from rain, and the snow, accumulated throug~ the
winter, begins melting during the spring and continues
through summer. The people in the village do not cUltivate
dry land though this is common in other provinces in
Afghanistan. Originally the whole village's agriculture
was based upon one stream or ditch constructed along the
road, (linking Gardez, the capital city for the Paktya
Province, to Khost town,) which crosses the northern edge
of the village. The villagers built up a dike at the
Shamel River near Dwamedah about eight Krns. from the
community. The stream provides drinking water for the
people and their animals as well as for their irrigation
system.
Wheat is planted twice a year: in fall and spring.
The fall wheat CUltivation begins in early Meezan (September)
and ends in late Agrab (October). Wheat is planted where
corn, beans, clover were cultivated before. The
cultivator irrigates the farm and leaves it for three to
four days so that the surface water evaporates and the
plot becomes softer (~eter) for plowing. The oxen,
necessary implements such as plow, mala, () t.), jegh (yoke)
and the needed amount of seed are taken to the farm.

44
 First, the seed is broadcast by hand. Then the land is
plowed over in close furrows from fifteen to twenty
centimeters deep and about five ~o ten centimeters apart.
Finally the furrows are leveled with mala. Very often the
land is plowed once. If the field is hard the villager
plows twice to make it softer. The fall wheat watani
'-
tukhm is cultivated in September and October, and
harvested in June. An improved variety (maksipak) planted
in spring is also harvested in June.
Rice, corn and beans are tilled in late June and
early July and harvested in September and October. Barley
is cultivated with spring wheat in March and harvested one
. month earlier than wheat.
The approximate yields per jarib and the cost of each
crop per sare in Afs. 1 Jarib = 2000 m2
1 Sare = 7.66 Kg. $1 = 55 Afs.

Tabl. 6 area planted yields in sare Price

wheat 1 120 65
corn 1 1)5 50
rice 1 1)0 55
barley 1 90 40
beans 1 125 70
There are different varieties of fruits.
apricots, mulberries and cherries ripen in June. Pears,
pomegranates, grapes, figs ripen in September. Some of
these fall fruits such as pomegranates and figs are kept

45
 in storage (cold places) to be served in the winter. Some
people dry grapes and mulberries and eat them in the winter.
This is a common custom in Perwan and Kandahar provinces,
but not in Almara.

Economy and Market:

So far in this chapter we have endeavored to'
characterize the predominant types of subsistence
technologies: agriculture and animal husbandry. Nearly
ninety per cent of the products of these types of
technologies are consumed within the village. It must be
noted that the Almara villagers are not self-sufficient
in so far as their food, clothes, and fodder for their
animals are concerned. This leads us to another area of
discussion of the villages intra- and inter-national
relationships.
The scarcity of arable land results in an in-
sufficient amount of agricultural products to satisfy the
villagers' needs. These people fill the gap by obtaining
wheat, flour, corn, rice and beans from the major cities
such as Kabul. Kunduz, Kandahar, Khanabad and Gardez~.

When the prices go up within the country or at times of

scarcity of food supplies the villagers buy their necessary
goods from Pakistan.
Almara householders often do not ovm sufficient
numbers of draft and transporting animals in their own
village. Many male villagers by the end of the winter go

46
to Pakistan to buy bullocks for the spring planting. Also,
during the summer time or fall these villagers go to Kabul,
Kandahar or Gardez to buy sheep to be slaughtered in the
fall and dried (landy) for winter when meat is not
available in sufficient quantity. Baluchi and Arabic camels,
very efficient for wood, lumber, and other heavy transpor-
.....

tation are purchased from Kandahar, Farah and Harat

Provinces. Holding a common border with Baluch people, the
southern Kandahar and Farah people maintain close trading,
commerce and smuggling ties with them.

Timber Industry:
The main sources of income in the village are wood
transportation (by camel or trucks) and wood products in
themselves. As it was noted before, the people of Almara
village own common mountain forests. These trees grow tall
and big and are commonly used in buildings, furniture and
truck body building industries within Afghanistan and
Pakistan. These trees are felled with steel axes and cut
into pieces. Lumber is hewed from the trunks. The
partially finished lumber, branches and other parts of the
trees are pulled down hills by hand and gathered in special
areas called hada where they are loaded on trucks or
camels for transport to internal or external markets.
A great number of oak, pine and spruce trees and
large amounts of tre remains from hewing are burned in huge
piles in order to make charcoal. To make charcoal, the

47
villagers gather a big pile of wood for burning. Dirt is
put on the fire to put it out. A few days later the pile
is dug up and the charcoal is loaded onto trucks or into
big sacks and tied on camels and transported to the
capital city, Kabul, and other major cities to be consumed
as fuel for cooking and heating. Charcoal making is
, very
destructive to the forest because there is no effective
reforestation program. However, it is a very common task
among these people. Some of the villagers conduct it as a
full time job by holding charcoal shops in Kabul and other
major cities.
In addition to the sources already discussed (lumber,
charcoal, other wood products and transportation) the
trading of almonds, pistachio nuts, tires and higher
quality clothing to Pakistan are also important. The
people involved in trading with Pakistan set up caravans
of from 20 to 400 camels that illegallyl export lumber
from Afghanistan. The Afghan government prohibits lumber
export to control deforestation, permit consumption of
wood within the country and control the water shed. More-
over, they load the animals with Pakistani products and
goods such as wheat, flour, cane sugar (gura), clothing,
shoes, plastic articles, fresh fruits such as different
kinds of oranges particularly during the winter. AlsQ,
a different variety of vegetables from Pakistan.
For many years the governments in Afghanistan have
not been able to stop this illegal flow of goods between

48
Afghanistan and Pakistan. The reasons for this state of
affairs are: (1) the proximity of these people to the
border which facilitates the transportation of goods; (2)
the openness of the border almost to the face of everyone;
(3) the poorness of the people due to the lack of land,
making other sources of income necessarYi and finally (4)
the lack of effective government programs providing
additional sources of income. The Pakistani products such
as footware, clothing, medicine, pots and pans, cloths
and others, having a very low quality, are sold in all
parts of the country.

Exchange Relationships:
To put the Almara villagers' exchange relationships
in a general context the data from the community indicates
that their economic system is similar to the fourth type
of the peasantry exchange relationship proposed by Wolf
(1966:37-48). The first type is the simplest one in
which a peasant household produces most of the agricultural
and craft services for itself, with only minimal ties
outside. The second type of peasantry exchange relation-
ship division of labor is defined. Villagers frequently
form corporations in which tillable land is held by a
group of cultivators.
The third type 2 of the peasant interchange is termed
sectional markets. This type of exchange relationship
involves periodic encounters in a market place. In this
system a market links a set of communities which are
scattered around it in radial fashion and each of these
communities may have its own economic specialty.
The fourth type of peasant exchange relationship
does not depend upon the traditional interchange of
customary monopolies in a closed regional system. We
borrow the network market term from John A. Barnes, who
has applied it to the social relationships observed among
a Norwegian fishing community, for this system which I
believe is also present among the Almara villagers. In
this form of social relationship, in addition to having a
different set of kinsmen, each individual has a different
set of friends and neighbors. Barnes (1954:39-58; and
1972:3-6) speaks of each person as being related to other
persons in a network. The network:
is a set of points some of which are
joined by lines. The points of image
are people, or sometimes groups, and
lines indicate whi~h people interact
with each other .... A network of this
kind has no external boundary, nor
has it any clear-cut internal divisions,
for each person sees himself at the
center of a collection of friends. (See
diagram number 1.)
Our interest in this case does not lie so much with
kin group, friends and neighbors, but with producers,
consumers and middlemen linked in ties of economic inter-
actions. I must note that the ties of kinship, friendship
and neighborhood represent relatively enduring ties among
the Almara villagers and elsewhere. The economic ties we

50
 Diap;rwn II 1
Network Market

o Represents an indlvj dual

@ lterrese!1ts [rOUr

Reprcsen~s ties cf econodc interaction

51
speak of may be purely temporary or may not last as long
as the other categories. Also, the exchange ties represented
by our model of the network market are a great deal more
shifting than those formed by a network of kinship or
friendship. In a kinship network ties are between two
particular persons and are relatively exclusive. B~t in
network market system ties are inherently subject to the
entry of third parties such as other producers, middlemen,
or consumers and these kinds of relationships are complex.
An Almara villager who sells charcoal in the winter
time in Kabul may have some special shopkeeper friends in
that city from whom he buys clothing. tea and other necessary
goods to take them back home:. He may kr!ow some other shop-
keepers in Gardez where he purchases wheat, flour and corn.
He may have ties with a butcher in the city of Khost where
he buys meat and vegetables and other goods. The same
individual may sell his lumber to specific individuals in
Pakistan through a middleman who was introduced to him by
a friend. He may also purchase specific goods such as
cane sugar, flour, corn, wheat, plastic items, footware
from individuals in Pakistan and on many occasions he may
accommodate these Pakistani individuals in his house when
they come to Afghanistan to buy almonds, pistachio nuts,
fine clothing, silk and other fine threads, tires and
other items which are 'scarce and expensive in Pakistan.
One may observe, for example, some members of family
A helping the members of family B in harvesting and

52
threshing the rice crop, while on another occasion some
members of family B may take the opportunity to help
family A when they construct a men'sJ house (mahman-khana,)
in front of their hamlet (generalized reciprocity). Or
on another occasion one family may give a certain amount
of wheat to another family·when it is needed and the
, latter
may return the debt in cash or in kind within a limited
time period (balanced reciprocity). But I believe that
the network market system is the integrative principle of
exchange for the entire culture in the area.
In short, this chapter has dealt with Almara villagers'
subsistence technologies and their economy. Agriculture
and some animal husbandry are the major subsistence
pursuits. As long as the elements of time contribution,
and difficult plantation and herding tasks are considered,
males play the predominant role in their sUbsistence
technologies. Lack of sufficient arable land compels
people to trade wood and conduct other tasks such as
involvement in transportation affairs, and internal and
external commerce. The industry of wood and the trading
relations of the Almara villagers weld these people with
people and markets within and outside the country. These
interlocking trading and exchange relationships can be
characterized as a network market.
In the following chapter we discuss the systems of
kinship, family and kinship terminology within the frame-

53
work of the technological and economic systems and their
functions among the Almara villagers.

54
 FOOTNOTES TO CHAPTER II

11 must note that it is not only Almarawal who export

goods to or import goods from Pakistan. Almost all nomads
who go to Pakistan during the winter and many other people
from Paktya, Nengrahar, Kandahar and Farah provinces are
involved in this process. ,
2For detailed discussion of the first three types of
exchange relationship see Eric R. Wolf Peasants, Prentice-
Hall, Inc., Englewood Cliffs, New Jersey, 1956, pp. 37-40.

3A men's house (hujrah or mahman khana) is a room

mostly built outside the hamlet or house where usually men
guests and men visitors stay and are served food, and, or
sleep and retire. It is peculiar characteristic of the
Pashtuns - where it exists the men have functions as a
large part dormitory for adult unmarried members. of the
household, guest house, and place for entertainment,
ritual feasting, and discussions of Pashtun political life.
There is at least one of such house in every hamlet. A
hamlet is a fortified settlement which encompasses from
two to ten households usually kin groups. Membership of
the men's house is limited to adult males. Children of
both sexes may enter, but they must keep quiet and out of
the way. They should leave the house when the important
political issues are discusseG. Women arc prevented by
feelings of shame from entering the gate at all, though
there is no formal ban; in the absence of males, a female
may go to the house in order to deliver a meal. She stops
outside the gate and calls meekly or knocks at the door
gently, without showing herself in the doorway, till
someone notices her.

55
 CHAPTER III

KINSHIP, FAMILY AND KINSHIP TERMINOLOGY

Kinship plays little part among the people of

western industrialized societies. But in many smaller-
scale societies, such as the people of Almara, the social
importance of kinship is paramount. Where a person lives,
his group and community membership, who he should obey and
by whom he should be obeyed, who a1'8 his friends and who
are his enemies, from whom he may hope to inherit and
to whom pass on his own status and property - all these
matters may be determined by his status in a kinship
system.
Kinship is only one aspect of social structure, but
it is the aspect that has received the most attention from
anthropologists. The importance of kinship in the study of
society is more than accidental. To draw from the work of
Graburn (1971:pp. 2-3; and Schusky, 1965:pp, 1) we may say
that the study of kinship is significant for modern
anthropology in the following ways:
1. Kinship systems are universals.
2. Theories of human behavior have been tested by
kinship analysis. For instance, much has been
learned about the relationship between the ideal

56
 and real behavior of the people by study or
kinship practices.
3. Kinship study is u~eful for r~storical

reconstructions.
4. Understanding of kinship behavior is invaluable
for the anthropologist in the field. AmoQg many
peoples kinship is the basis for most behavior
and the anthropologist quickly makes sense of
why people interact in the way they do once he
understands their kinship systems.
5. Analysis of the meaning of kinship terms has led
to new understanding of how people view the
world or at least how they make classifications of
parts of it.
6. Kinship systems are relatively easy to identify
and lend themselves to fairly simple analyses.
7. Finally many other aspects of the nature of
society had been examined at some length by other
social theorists before anthropology became a
well-formulated social science - thus,
anthropologists concentrated in the area which
was neglected before.

Descent:
Descent among the Almara villagers is reckoned
strictly in the male line. An individual traces his (her)
biological and jural descent patrilineally. Based upon

57
the principles of this ~escent pattern, a mother has no
rights which she could transfer to her children, either in
her marital or her natal homei nor does she control any
productive resources. Although Pashtun wives play
important roles in domestic, cultural and animal husbandry
affairs, they are still dependent on their husbands, ~

fathers and sons. The Pashtun society, therefore, might

legitimately be called patriarchal. Barth (1959:22)
characterized the Swat Pashtun's family of the West
Pakistan as follows:
... in the family, the husband and father
has all authority; he controls the
social intercourse of the family members
to the extent of being able, at his
pleasure, to cut his wife off from all
contact with natal kin; he controls all
property; he may use physical compulsion
to enforce his authority; and he alone
has the right to dissolve the domestic
unit or expel its members, by divorce or
by disinheriting the children ...
The data from Almara do not support the contention
that the patriarch in the family expels members of his
family by divorce or disinheriting the children. These
are the formal rights. Divorce, as Barth (p. 38) later
confesses, though legally simple and permitted by Islam,
is regarded as very shameful. In Pashto, the language
spoken by the Pashtuns, an individual may read or hear the
words talaq (divorce) and Aaq (disinheritance of a son),
(which are both originally Arabic words,) but in practice
it is, extremely rare. The investigator was not able to
find even a single case of divorce and disinheritance of

58
children in the whole village. A divorced man cannot
live in the community. The word zantalag (one who has
divorced his wife) is a great insult to a pashtun.
Attempting such deeds will not only damage a husband's or
his father's reputation and status in the community, but
would cause great shame and dishonor for his (pred~~essors)

and successors as well as for his whole lineage.

Adopting the basic distinction made by Linton
(1936:pp. 11)-114) between ascribed and achieved status,
one might say that patrilineal descent defines the only
principle for the ascription of status or rights. The
organization of Pashtun society except for the educated
portion of the population is predominantly based upon that
principle. The father with a higher social and political
standing in the community will send his son to the jirgah
(the council of elders) to represent his father, express
himself and give suggestions. Similarly, he is expected
to go to the administrative, justice and police offices,
represent his father and talk in behalf of members of his
community who are not familiar with official affairs. The
son is also expected to go to the men's house l to serve
the guests and members of his own political bloc properly
and disc.uss the current internal and external issues related
to the village with them and argue with them if it is
necessary. These examples indicate that the fathers have
plans to train their sons for succession to their own
"offices" when they retire.

59
 In connection to the unilineal descent system in
Swat, Barth has written that:
A unilineal descent system is based on
the recognition, for culturally defined
purposes, of unilineal succession and the
equivalence of siblings. These two elements
are present among Swat Pathans in the
form of an ideology of respect for one's
father and father's father and solidarity ~.
between brothers . . . (1959a:23)
The elements of unilineal succession and the equivalence
of siblings are present among the Almara villages as well.
Regard for one's father, grandfather and other close elderly
agnates is characterized by name avoidance. It is shameful
to mention the personal names of one's own close agnatic
ascendants: to do so would be disrespectful to them. An
individual avoids mentioning the personal name of someone's
father who is present. Moreover, respect for one's father
and close agnatic ascendants and kin who are alive is
indicated by (1) walking behind them: (2) avoiding smoking
and being bare headed in their presence: (3) standing up
when they enter a room and (4) by abiding by their order.
An individual not doing so would be disrespectful to them
and he would be called behaya (impolite). A father's
authority is recognized throughout his life; relation between
father and son are usually formal and a strong tie of
affection and loyalty is assumed. Relations with one's
father's father are more light-hearted and intimate.
Mutual trust between brothers is expected. There is
some recognition of primogeniture particularly in the succession

60
of formal and informal offices such as headmanship in
the family and in the community and distinction between
masher (senior) and kasher (junior) brothers. Each man
does not establish a separate domestic unit upon marriage
and the inheritance is not divided between brothers after
the death of the father.

Allocation of Inheritance
The meerath (inheritance) is used very often in
Pashto. Theoretically, and based on Islamic laws, wives,
husbands, daughters, mothers, fathers, sons, sisters and
others inherit a certain portion of the estate left after
the death of their relatives. In practice the Pashtuns
in rural Afghanistan, in general, and the Almara villagers,
in particular distribute the property left after the death
of their close relatives only among the deceased's close
male waratha (heirs). Asking for one's wife's inheritance
share, for example, after her father's death is regarded as
socially unacceptable in Almara. This is why some members
of other ethnic groups in Afghanistan profess, at least
half-jokingly, to believe that the Pashtuns accepted one
half of the Quran.
Before discussing the allotment of taraka (inheritance)
in more detail four important points need to be mentioned.
1. Rights related to the estate left by the deceased
are:
(a) hag ayni, the right which relates to the estate
itself. For example, if a murthen (person who mortgages)

61
mortgages an estate he has priority before all other burial
ceremony expenses, bequests and heirs.
(b) Takfeen and tadfeen which includes all
expenses incurred, related to the deceased from the time of
death till his burial.
(c) Payment of the deceased's debts must ....be paid
after the payment of hag ayni, takfeen and tadfeen if anything
is left from the deceased's property.
(d) After the payment of a, b, and c, the
special bequests have to be paid. Each person has the right
to bequeath one-third of his (her) estate to special
individuals even for non-he·irs. To bequeath more than
one-third of the estate an individual needs the permission
of his (her) heirs.
(e) If after the payment of a, b, c and d,
anything is left from the deceased's property, the heirs
are entitled to inherit and divide the estate based upon
Islamic rules.
2. Merath 2 agarib or relatives'''shares'': there are
three categories:
(a) ashab foroz which includes the individuals who
according to Quranic verses inherit one-third and one-sixth
of what the deceased leaves. Foroz is the plural form of
Arabic farz meaning being determined and described. Since
the "share" of thes e relatives are determined and cEscribed
precisely one-third and one-sixth in the Quran, these
relatives are called Ashab el foroz. Ashab el foroz

62
includes father, mother, daughter, son's daughter, sister
(~ini khur, Pashtun; khwaher ~ini, Persian), father's
sisters (trur, Pashto; ~ma, Persian), mother's sisters
(trur, Pashto; Khala, Persian), father's father, mother's
father, and mother's brother.
(b) Father's relatives are persons who a~~ related
through a male line to the deceased and are not separated
by a female from the deceased in the descent line. Women
included in this category are sisters (khwaharan ~~ni),
sisters related through a father, daughters, son's daughters
and son's son's daughters.
(c) Relatives with the common origin are father's
sisters, mother's sisters and brothers, brothers' daughters,
and father's brothers' daughters.
3. Islamic law identifies two factors which result
in disinheritance: murder and nationality.
(a) Based on one hadith ("traditions" of the
Prophet Muhammad) all of the jurists are agreed no persons
can inherit from another whom he has slain, either by design
or by accident.
(b) Most of the Islamic jurists believe that a
Muslim cannot inherit from a non-Muslim deceased's estate
and vice versa. The apostasy of an heir excludes him from
any legacy, and so also would the fact of his being an
unbeliever. Bastardy excludes from inheritance from the
father but not from the mother.

63
 4. A testator may, by established custom based
upon tradition, make bequests to the extent of not more
than one-third of his or her property remaining after
payment of all debts.

Inheritance Allotment
Islamic laws identify the following rules relating
to the succession of property to the waratha left after the
death of an individual:
Offsprings' "shares"
Allah (God) instructs you concerning your children:
for a male the same amount as for two females and if among
the waratha (heirs) there are more than two persons
(i.e. daughters), they are entitled to have two-thirds of
what the deceased leaves. When waratha is one female, then
let her have half of the taraka (inheritance). Where the law
is regarded, there is no recognition of primogeniture among
the Afghans. According to the Islamic law, all sons inherit
equal portions of their father's estate. A deceased person's
son, however young, takes precedence over a grandson. In
practice the eldest son has the advantage that he gets more
respect and therefore, may be given more of the estate left
from his fa theL Levy (1971) tells us that "daughters
are amongst the individuals who are specially mentioned by
the Quran as entitled to 'shares.' ~Vhere there are no sons,
an only daughter receives one-half of the estate after the
necessary deductions have been made for debts, burial

64
ceremonies and others, and two or more daughters receive
(among them) two-thirds. Where there is no other legal
heir, some codes assign the remainder of the estate also
to the daughter, or daughters, though others deny their
title to it . . . " (1971:145-6)
Dari (1968) explains the dec eased's parents I .~'shares"

in the presence of the children and siblings. Then he

discusses the parents' "shares" in the absence of offsprings.
Parents' "shares"
As described by Dari "if the deceased has children
each of the parents inherits one-sixth of the property left
to them. If there are no children and the parents are the
only heirs, !the deceased'~ the mother inherits one-third

of what (the deceaseq7 leaves; and two-thirds of the estate

is the father's "share." If there are brothers and sisters,
after payment of the bequest !the deceased bequeath~ and
debt the mother receives sixth of the estate, the deceased
leaves." (1968:III-IV)
Wives' "shares"
If there are no children, then the wives are entitled
to receive one-fourth of their deceased husband's estate.
If a person has children whether from these or other wives
after payment of the deceased's bequest and his debt all
of the wives together inherit one-eighth of their deceased
husband's estate.
Husband's "shares II

When the wives have no children, the husband inherits

65
one-half of the estates left by his deceased wives. If
there are children whether from a husband under consideration
or other husbands, after payment of the bequests, their
debts and their burial ceremony expenses, the later
husband is entitled to receive one-fourth of the estate
left by his wives.
Children's "shares related through mother
When the deceased is a kalala 3 (a man with deceased
father and having no sons) or a woman with siblings related
only through the mother4 , the heir inherits one-sixth of
the property left. If there is to be more than one heir,
they inherit one-third of the taraka ("share") altogether.
The "share" is allotted among them after payment of the
bequest and debt bequeathed by the marai (Pashto), mayit
(Arabic) .
Sisters' "shares"
When a deceased is a kalala, his sister inherits half
of his estate. In situations where the deceased is a
sister with no children the brother is her heir. When the
heirs are two sisters, they inherit two-thirds of the
deceased's estate. Where the heirs are brothers and sisters,
the males receive the double the amount of the females. 5

Lineages
The moral norms and jural rights discussed above
supply the basic ideology necessary for the maintenance of
agnatic descent groups. Radcliffe-Brown in his paper on

66
patrilineal and matrilineal succession (1936:32-48)
indicates that corporate unilineal descent groups only
emerge in relation to joint estates, that is to say, when
the members of the descent unit have a common stake in
something. To a great extent it is also true with Almara
villages. The land being very few ';arebs (1 Jareb.:: 2000 m2 )
is not owned by the members of lineage; ownership of land
is by nuclear or extended family. The only estate owned by
the members of the lineage is the mountains. Very often
several lineages own one mountain or a part of it jointly.
The common word for a patrilineal descent group in
Pashto language is -khel (lineage). Murdock (1940:46)
defines a lineage as "a consanguineal kin group. . . when
it includes only persons who can actually trace their
common relationship through a specific series of remembered
genealogical links. " Almost all men whatever their
khel's social and political status are able to name a khel
to which they claim to belong. Many of the adults can
trace their descent through their common ancestors if the
lineage is not very large and does not include many
generations. Thus a lineage is a group of people who not
only think of themselves as descended in one line from a
common ancestor, but who also claim to know what the
genealogical links between them are.
The word khel very often attaches itself as a suffix
to a name such as Zmel, Namet, Sedi, etc. and makes them
Zmel-khel, Namet-khel, Sedi-khel and Khoydad-khel

67
I'~spectively. The villagers have two views about their
ancestor, Zadran and brother(s) and they trace their
genealogies as shown in the ~ams number 2 and ).
The first view believes that Zadran's father was called
Tsarabring (Tserben) who lived in Birmel, Woch Largy or
Mergha in Wasiristand, West Pakistan. According to, this
view Zadran had two brothers: Mangel and ~ardok6 as
indicated in diagram number 2. The second view believes
that Zadran's father named Berhem the son of Kateran and
they lived their lives in Birmel in Waziristan.
The purposes of these diagrams are first to trace
the common ancestors of the Almara. Second, to demonstrate
the links among the lineages. Third, to indicate the
appropriate time these people and their ancestors spent 1n
the village, and fourth, to display the number of generations
following the founder, Zadran.
It should be mentioned that these lineages are not
exclusively indigenous and are very often localized.
Several men were reported to this researcher whose wives
were from other communities and even other clans and ethnic
groups. Membership in the lineage in the case of men is by
birth. Women who come from other lineages and ethnic
groups become a member of their husband's khel (lineage)
at the time of marriage and follow their husband's lineage
norms and customs. Members of a khel are obliged to assist
each other in times of disaster, mourning ceremonies, during
weddings and particularly in times of confrontations with

68
 Kateran

l,-iardak Berham

---l
6 Beba-Khel
--_._--, 6.
Zadran
6.
~ardaK

Diar:ram II 3
Dari-lihel 6. Yahya-Khel

;;nsi..-
6. Khel
Zr..el-Khel

Jamek 6
I Jliwol
Diaeram II 2

Peerdad-Khel 6. 6 Ali-khel
Sapy-
Khel

Eisa[i
1- 1 Zareof
- -I 1
Serdarei Nurrudin

Shanek 6 Gulze~

I
6
I
6

6
I I
6

69
 zm~l-khel

Khw&ja- Khel
A!eelll- tt)1el

Azmet Hazrati

NOWTOZ I i Mir

GIll Mir

.]WIl& Nur 1 JIUr

yuaut sia urrahun
Lal Mir

Nasrull a O!man
Shukur

Dia~aJII # 4

one or the line&Fe~ in Almara

70
other lineages and clans. I will discuss the last point
in more details in Chapter V.

Household Type
While we discuss the question of Family, the distinction
between household and family must be made. Surprisingly
"

enough, many books, even the modern ones as Bohannan points

out, define the family as "a man, a woman and their children
who live together." (196):86) Based upon my observation
ind as indicated in the Village Atlas of Afghanistan,
there are 1)6 households in the Village of Almara.

Household
By household is meant a group of people living together
and forming a functioning domestic unit (Bohannan, 196):86;
Otterbein, 1972:45). In cases of Almara villagers usually
the group occupies a physical structure with walls and roofs
which are houses within a Kalai (hamlet) owned by several
householders or a kalai if the group is larger in number of
people. The people occupying the house or kali cooperate
in the domestic and subsistence affairs of the house.
Although not necessarily, the householders in the
village are usually kin groups. Occasionally some house-
holders hire a laborer or a shepherd, who is considered a
member of the household, for the agricultural tasks or for
the purposes of animal husbandry affairs. The members of
the group very often cook, eat, sleep and work jointly.
In eating, the villagers practice commonality. The food is

71
prepared by the women in the common hearth, and then is
divided in two parts. One part is taken to the men's
house (hujra or guest house) by the teenage boys and is eaten
together by all male members in the household and their
guests, if any. The other portion is eaten within the house
by the female members of the household and female g~ests,

if any.
All the inhabitants of rural Afghanistan in general
and the Almara villagers in particular usually sit on the
floor and it is considered normative and polite to be
squatted especially when one serves his or her meal or
sitting in the presence of his or her elderly relatives.
Before the meal is brought to the men's house a youngster
is expected to bring some warm water in a pitcher (Kuza)
and a basin (chalamchi). He begins from the very holy man,
if present, or from the most elderly men or from the highest
level official present. Then the tablecloth (dester-khwan),
mostly made of wool from one to three square meters or a
piece of cloth is brought in which the Afghan bread (marai,
dodi, pastai, Pashto) is wrapped. Finally, the main meal
is carried to the room while depending on the number of the
people present they will sit in one circle or several circles.
Since the Almara people very often serve rice and soup
(chicken or beef or lamb) called dandakai or soup and
bread called shoorwa (Pashto and Persian) in the evenings
and they use a talber (a big bowl) very often from two to
eight persons sit around one talber, food container, and

72
serve their meal. This researcher on many occasions witnessed
standing teenagers holding a drinking water pitcher in their
hand till everybody was satisfied. While the meal is being
served, boys. girls and women wait to serve the men. After
serving the elders and the guests. boys depart and eat.
Girls also then serve their meal with their mothers. ",.
This
signifies respect and hospitality in the case of the owner
of the house.
In short. the households in Almara are charged

with the basic domestic economy and the education and

training of the young. The members of the households own
a major physical structure for their living but sometimes
a part of that local group may move to their mountain
bandas (hut in the mountains) temporarily or may move with
the herds when the season and temperature do not permit
their stay near the village.

Family
In distinction. the family in Almara is a kinship
group which maintains kinship relationships and the members
mayor may not live in one physical structure at one time
together. The common type of the Kurany (family) is the
extended family. Of 136 families resident in the community.
41 included 10 ur iliOn:: members and 129 of them are extended
families. By extended family in reference to the Almara
villagers. I mean a kinship group consisting of three or
more successive generations of related individuals which

73
may include one or more marital groups in each of two
adjacent generations. The members of the group if present
in the village live together. Some of the members of the
family may live in another province and even out of the
country but are still considered as members of the family
in the village. Any kind of income and benefit coming
.....

from anyone in the group becomes a shared estate of all

members. Theoretically, any member of the family inherits
a particular "share" from the common property, estate and
money.
The right to inheritance by all members of the family
is another characteristic which distinguishes family from
household. None of the books and articles on household and
family known to me (Murdock 1949: Bohannan 196): Graburn 1971,
Goodenough 1970; Pasternak 1967: Selby 1975 and others)
have mentioned this point. In the whole country inheritance
"shares" of all members of the family are defined by laws
which are based upon the Islamic principles. Based upon
the inheritance laws there is no inheritance for the member
of the household who are not a consanguinial or affinal
member of the group unless he is adopted by a member of
the family, for instance, as a son or a daughter. This is
a crucial point which should be raised in discussing the
differences between family and household.
The ethnographic record contains ample evidence that
joint families can thrive on relatively small parcels of
land. Nimkoff and Middleton (1960) tells us that the greater

74
tolerance for extended families among agriculturalists is
probably related to their ownership of property, especially
land:
If division results in many small pieces,
each member of the family owning and working
his own piece, the system becomes relatively
unproductive. There is a disposition under
the circumstances to hold the family's lan~
intact and to add to it if possible.
(196o:220)
Extended families as Pasternak (1976:91) believes
are also quite advantageous in pastoral societies where
benefits can often be obtained from cooperation in the herding
of animals. In brief, then, although we cannot predict family
type simply on the basis of the nature of their technology,
it is clear that some types of families are more likely to
occur and be more functional in certain technological contexts
than in others. In the following section we discuss
another important anthropological issue which concerns
kinship terminology system and its significance in reference
to the familial and kin relationships.

Kinship Terminology
Anthropologists for sometime have been interested in
the way people refer to their relatives because the terms
they use can provide information about other aspects of
culture, social behavior and social organization. For these
same reasons, the study of nomenclature systems can also
be of practical value to those interested in problems of
cultural change or ethnohistorical reconstructions. In this

75
section, we will examine the nomenclatural systems that
the Almara villagers and other Pashtuns of Afghanistan employ
and discuss a few of the things that one may learn from them.

Address vs. Reference Terms

In constructing the kinship nomenclatural system,
I normally gathered information about the terms tha"i; people
use when referring to particular kinds of relatives, or kin
types, in the presence of a third party. The information
on this type of terms were obtained through the usual
genealogical method, by hearing terms spoken in daily life,
by abstract discussion and by eliciting technique, e.g.,
asking an informant, "what is the relationship between
so-and-so and yourself?" There is an important difference
between such terms and terms of address, the terms that Ego
employs when addressing a particular relative. Terms of
reference are more consistent from context to context
than those used in address. The latter are often metaphorically
extended to nonkinsmen. The address terms are so varied in
Pashto and there are so many of them and the same terms
are extended to so many different individuals that it is
very difficult for the investigator to collect them all and
classify them systematically and logically. A young boy,
for instance, in the village of Almara addressing his father
may employ the term "gul-IaLa," khan-IaLa, aba, ada, baba,
and others. But he may also employ the same terms when
addressing elderly men other than his biological father,

76
 just as he may sometimes address nonsiblings as "Yi1:..Q1:"

(brother), as a respect. Therefore, drawing inferences

about the nature of the Pashtun society based upon their
address terms could be confusing and misleading. Possible
confusion is avoided when we elicit terms of reference and
it is for this reason that the investigator prefers to
.....

analyze the system of reference nomenclature of the villagers

in this section of the essay.
An important opposition ~round which much kinship
discussion revolves is that between khpel (relative) and
prady (nonrelative). The terms khpel and aziz are extended
for "relatives" collectively, implying or connotating some
degree of patrilineal relationship. Khpel is very often used
for real patrilineal relatives and one's own lineage members.
Aziz could be used to refer to a broader group such as friends
and one's both lineage members and affines but very often
carries the connotation of kinsman. The term khikh or khish
are specifically employed for the affines. The word seyyal,
which connotates the meaning of unrelated but social equal
individuals, are potentially marriageable people. In some
distant context patrilineal relatives are also referred as
seyyal.
The primary kinship terms for Fa (plar), Mo (mar),
Br (~), Si (khor), So (~), Da (Lur), Ha (mara or
khawand), Wi (shaza or khaza) are not confusing. Only
primary relatives of the appropriate category are referred
to by these terms. All other consanguneal kin terms may be

77
applied in an extended sense, usually in a classificatory
manner.
In the ascending generation, the grandparents, FaFa
(Nika) and MoFa (Nika) and are not differentiated and are
referred by one term nika. On the same token, there is one
classificatory term for FaMo and 000000, nya. .....

Parents' siblings are classified in three categories.

FaBr is called tra. MoBr is referred to as mama. The
confusion appears in reference to FaSi and MoSi. Both
categories of these relatives are referred to by the same
kin term, tror. There are different terms for FaSi and
, '

MoSi in Arabic (Ama, khala) Persian (Ama, khala) and Baluchi

(~, masi). (Pershon 1966:36) The main reason for this
difference, I believe, relies in the question of inheritance.
As has been indicated before, there are specific "shares"
for each category of relative in deceased's estate among
all Muslims except for the Pashtuns. This custom is socially
but notreligiously sanctioned against among the Almara villagers.
Terms of reference applied to all first cousins are
classificatory descriptive terms. Since uncle and aunts
are classified in three categories: (FaBr=tra; FaSi=tror;
MoBr=mama; MoSi=tro.~) because of the sex differentiation
within each category, the first cousins as indicated in
diagram number 5 on page 80 are grouped in six different
sets. FaBrSo is referred to as tarbur, and FaBrDa is called
i ••
tar~; FaSiSo and MoSiSo are referred to as trorzei (sing. ().J'.JJ/ ) i

FaSiDa and MoSiDa are called as trorz e (sing. '0';.1.1; ); the

78
term mamazoy is implied for MoBrSo and the term mamalur for
his daughter.
Barth (1959:110) was not able to understand this
point. According to his diagram (1959a:llO) he believes
that the Pashtuns apply the terms wror (Br) and Khor (Si)
equally to paternal and maternal aunts' sons and daughters
respectively, which is wrong. The terms Wrara for BrSo,
Wrera for BrDa; khorye for SiSo and khorza for SiDa are
applied. SoSo and DaSo are both referred by the same term
nmase or Lmase; SoDa and DaDa are also referred by nmasei
or Imasei terms. Barth (1959:110) again gives us the wrong
terms which are the combination of Persian and Pashto words
for these two categories of kins. The term nawasa is a
Persian kinship term referring to grandchild of both sexes
and it is not grammatically correct in Pashto to add Pashto
suffixes to a Persian word to make it a Pashto kinship term.
Terms for further descending generations--(somewhat hypo-
thetical and not widely known) are karvl8.se (1S'J/) for girl
and karwas ei ( (y.Jf) for boy.
Members of the maternal lineage are collectively
called mamakhel and by lineal extension, all such males may
be addressed as~. There is no collective term in Pashto
for paternal lineage, but when a person is asked who he is.
he identifies himself with his present khel. if the question
is very specific. he would identify himself with his
sublineage (korane or plargane).

79
 ghornik rornik

nia nih nia o 6nik~

tror mara trormara

mam-~TL-
.shaze ma!na
tror
mor U::;=6 p1ar trOJ L:.T Cdrendartror.
-L
T(ZO"'O)

mar.i~lur
m~zoo r-:Jei
tcrl trQz:ro~
zome
L l l.
-
J.l
-l.
'6
lr
70e
enc:ur
enc:ur
==0
==0 wrar terla 0
I
1
terbur
I

-[
II
0
co

II
r-4 II P-
on P-
ili
~

1 i L~ .:; °rl
....

1
Ul-.t::
c... ~
I -<
C to
oc

0 6
I lc..se
u /:::.--,-,
v 0 6=== L
~
II
't:I o~ n 'rl 0
-.->·rl
d+'
rlQ
1 ~ f!QlH
Imase: lmasei/ lmase
lm::J
lmnse 1111:15ei It". r-4
"
I!
104
<30 II
~ II
•
+>
II 11 Q)
u., +' t::l
~ '"~ P-
II Q) III t: c
rl °rl 0 °rl
I
Q)

b
r-I III HOr-l
~
°rl
..c: HUl.D
~ ~ :.-<0
]mrwasei
~ o
kurwase 6
~urW'ase~
°
kurwase
II
....A g "c: orl
III C)°rl
<= 'tj :n
t.> .Ill
Affinal Terminology
The affinal terminologies illustrated by diagrams 6

and 7 below remain to be discussed.

Diagra # 6

khwkhe ekher
or khwnahe

r
•

=0
wret EGO
_ ' ') sh ze " \
-:>-- (kh ze)
( mandana)
....
khwai5hine
(khiTle) 1
ukhehe
(ukha)

r
Diagr.... i; 7

EGO
- lIIara o
ndor
I
I
1=1
hWu" ,.Ur

The wives of FaBr and Br are assimilated to their husbands'

kinship positions and marked off from them by the Pashto
feminine suffix -dar as trandar and wrandar respectively.
Husband's mother and father are referred by special terms
Khwashe or khwakhe 7 and skher respectively. Referential terms
for wife's mother and father are also khwashe and skher
respectively. Own wife is shaze or mandina and husband is
~. Ukhshe is applied for wife's brother and sister's
husband. Husband's second wife is ben and his sister is

81
referred to as ndror. Referential terms for husband's brother
and his wife are lewar and yur respectively. The term for
MaBr, mama, is also very often used vocatively to senior men
with ~hom an individual wishes to emphasize intimacy,
though never to a senior agnate. Aba, ada, aya, kaka and
others are used for this purpose for one's agnates .
.....

Following Kroeber (1909:77-84), Goodenough (1967:

120)-1209: and 1970:68-98), the data presented in this
section leads the researcher to single out the following
components as those most likely to produce a classification
like that found in the Pashtuns terminology: (1) mode of
relationship: consanguine vs. affine, (2) lineality:
agnate vs. nonagnate, ()) sex: male vs. female, (4) genera-
tion: -) to +), and finally (5) distance: distinction
between lineal and collateral and degree of collaterality.
Moreover, as indicated in the diagram 5 on page eo,
there are special kin terms for Ego's relatives in his own
generation and in his first ascending and descending
generation. Reasons for this state of affairs, I believe,
rely on the great number of possible frequencies of
interactions, encounters and dealings between these three
generations of relatives. By the same token, the question
of inheritance left by Ego after his death and the "shares ,.
belonging to the first ascending and descending and Ego's
own generations are more important.
The relationship between grandchildren and their
grandparents is one of every familiarity in the community.

82
Radcliffe-Brown (1952:29) has summed this up in his phrase
"the merging of generations." In Afghanistan like many
other people of the world it is said that grandparents spoil
their granchildren. They can afford to do so, for they
do not have the responsibility as the children parents have,
of disciplining them and bringing them up in accordance
with approved social norms. Also, members of the grand-
parents' generation, unlike those of the parental one, do
not feel their status to be threatened by the growing
generation of grandchildren. They are already, as it were,
"out of the race," for they have already been replaced by
their own children. For these reasons the relationship
between grandparents and grandchildren is usually free
and easy.
One specific point about the negative meanings implied
by some of the kin terms deserves a further note. The
terms ben for HW and torbur for FaBrSo imply hostility and
animosity. The reasons are obvious: Ego's ben is an
individual who "shares" a husband with her. No one would
like the idea. FaBr in the absence of son is the closest
heir, by the same token his sons are the potential heirs.
In Pashtun culture, no one likes to be without sons and
does not approve of his property left after death being
distributed, except for his sons, among his other heirs.
Since FaBrSos are potential heirs for one's father's estate,
a feeling of antagonism prevails among them about this
particular issue.

8)
 To which type of terminological system the Pashtun
nomenclature belongs is another question to be discussed.
As noted in diagram 5 on page 80 all cousins, except for
the offspring of MoSi and FaSi, are referred to by different
kin terms; and also these terms are different from those
by which one's brothers and sisters are referred to.....
MoSiSo and FaSiSo are called trurzei; MoSiDa and FaSiSo
are called trurze and both of these terms are, however,
different from what an individual calls his Br and Si.
Therefore, I categorize the Pashtuns terminological system
under Sudanese type.
To summarize, this chapter has dealt with the
Almarawals kinship, descent, family and nomemclature systems.
Their system of descent is parilineal and the system of
patrilineage prevails among them. The system of extended
family is very common in the area. I classified their
kinship terminological system as Sudanese type. I briefly
discussed how the villagers categorize their kinsmen and
kin terms and more important how they think about them.
I did not deal with the social communities only as systems
of action. I vas concerned with them also and essentially
as involving systems of ideas and meanings. In the coming

chapter, I will deal with the meaning, modes and regulations

of the Almara villagers' marriage system.

84
 FOOTNOTES FOR CHAPTER III

1See for the description of the men's house footnotes

number three in Chapter Two.

2Merath is originally an Arabic word. When used as

infinitive has two meanings: (1) property left af~r the
death of the deceased and (2) transferation of the property
left from deceased to his (her) heirs.

JKalala is an Arabic word, meaning a man whose father

is dead and has no children.

4sibling related only through mother are alatj

brothers and sisters.

5Much of this section materials was translated from

G. M. Dari, The Organization of Inheritance (1970) Kabul:
Supreme Court Press.

6The Almara villages believed that when zadran and

Wardak were living in Bir~el, one day Zadran went to the
nearby mountain and hunted a deer. .11hen he returned from
the mountain, he asked hi~ wife to split the animal into two
equal parts, keep half of it for her own family and give the
other half to Wardak's family. Except for the stomach (Lari)
she gave a complete share to Wardak's family. When Wardak
came home, he asked his wife about his share in the hunt,
and if she received any. His wife told him she got everything
except for the half of the lari (stomach). Wardak got angry
and asked his wife to begin to pack up, because he could
not live like that anymore. Wardak's family left their home
without informing the Zadrans early in the morning left
toward Afghanistan and resided in what is called Wardak now.

7Husband's mother and father and wife's mother and

father are called khwasha or khwakha and skher respectively.
The use of khwasha term is common in Kandahar, and Paktya
provinces. The Pashtuns of Ninegrahar province use the
term khwakha. The differences is the phone sh and kh.

85
 CHAPTER IV

MARRIAGE: MEANING AND RULES

Very of'ten definitions of "marriage" require that the

couple live together, that their union be ritually
recognized in some fashion, that the relation be one that
clearly defines sexual rights or a union between a man and
a woman, such that children born to the woman arE' tile
recognized legitimate offspring of both parents.
In this chapter I consider several interconnected
aspects of the institution of marriage. First, I discuss
the meaning of marriage. I then consider the mode of the
institution, that is to say; its stages in order. Later
in this chapter, I will discuss patterns of marriage.
Finally, I explain the various regulations and prohibitions
associated with the institution of marriage.
The difficulty with definitions of marriage is that,
individually or in combination, they do not enable us to
include all ethnographic situations that we feel OUb~~ to
be embraced in a general discussion of marriage. A great
number of prominent anthropologists such as Bohannan
(196):57), Evans-Pritchard (1970:1429), Radcliffe-Brown
(1950:5), Murdock (1949:8), Seligman (1951:110), Se~vice

86
(1971:151) and others have given definition(s) of marriage
and have discussed it in full 1 but when the same term
"marriage" is used cross-culturally the field of meaning
must be vastly reduced. The marriage of an Iranian Prince
is not quite the same thing as the marriage .of a man in
Almara village. The reasons for this difference l~~ in
the fact that there are a good number of different customs
associated in these two societies.
All these indicate how difficult it is to arrive at
a definition of marriage that will satisfy all situations
and be acceptable to all social scientists. It is better
to avoid becoming obsessed with the task of formulating a
definition without exceptions or objections. The best
definition for marriage is the one which complies with and
embraces the majority of the ethnographic cases.
Gough's (1968) observations among the Nayars have
prompted her to suggest another definition of marriage
which seems to be wider in scope:
Marriage is a relationship established between
a woman and one or more other persons,
which provides that a child born to the
woman under circumstances not prohibited by
the rules of the relationship, is accorded
full birth-status rights common to normal
members of his society or social stratum
(1968:68).
Gough's definition has helped to dispel the notion
of nuclear family universality. She insists that marriage
occurs in most if not all societies, including the Nayars
of Malabar. It is unlikely that the matter has been

87
resolved with Gough's definition (Harris 1971:173-175).
I believe it is not really vital that we establish that
all people have marriage. It is far more important that
we adopt a clear and explicit definition that will embrace
most ethnographic cases and that we concentrate our efforts
rather on relating "marriage" so defined to other c.!lltural
phenomena. Gough's definition serves us quite well.
In order to understand the Almara villagers customs
relating to marriage we must realize that a marriage is
in essence a rearrangement of soci~l structure. 2 By a
marriage in the village of Almara and elsewhere in the
world certain existing relationships particularly those of
the bride to her family are changed. New social relations
between the husband and the wife, and between the husband
and wife's relatives and between wife and husband's
relatives on the one side and between the husband and
those of wife's relatives who are interested in the process
on the other side are created. To put this in another
way, a marriage in the village of Almara is not simply a
union of a man and a woman. Essentially, as the alliance
theorists believe, social groups are separated and equal
and all exogamous groups from the nuclear family to a
moiety, are functionally dependent on another wife-giving
and wife-taking group. The bonds that integrate them into
the larger society are those of organic solidarity, and
those bonds are expressed in the exchange of women
(Graburn 1971-213). Later we will examine the functions of

88
exchange of women which result in groups and societal
solidarity and alliance not only in normal situations, but
also in the incident of conflicts and feuds.
Two kinds of marriages are observed among the Pashtuns
of Afghanistan. I label them as "normal" and "abnormal"
marriages. The normal marriage is a natural procesp and
it usually occurs when boys' and girls' parents understand
that their offsprings are mature adults now and need to
be married. The abnormal marriage happens, though in
recent years very rarely, whenever there is a bloodshed and
the litigants want the dispute to be resolved peacefully.
The slayer pays the nake (bloodprice). The bloodprice for
a slain individual in addition to a payment of 60,000 Afs.
and two sheep is a unmarried girl.
The normal marriage may proceed by stages as follows:
(1) search for a bride; (2) betrothal; (3) Pasharat; and
(4) marriage ceremony.

Search for a Bride:

As far as premarital relationships between boys and
girls are concerned, there is no dating system in Almara
and other rural areas in Afghanistan. A minor suspicion
and gossip in connection to a "love" relationship between
a boy with a girl may put them both in grave danger of the
death penalty. A boy may be mayan (in love) to a girl or
vice versa but it has to be kept secret until they are
engaged or married. Before the engagement the boy and the

89
girl, who may be a prospective husband and wife, cannot have
any type of sexual relationship. Even they are not
socially permlited to talk to each other before their
marriage. If a girl and a boy start to establish a
relationship before their engagement and it is knovm to
the girl's parents and brothers and the villagers, ~er

father or brothers will kill both the girl and the boy.
The marriage is arranged by the parents in the
village. Therefore, the initiative may begin with the
sending of a go-between and then commence by a visit from
the mother or aunt of the boy to the house of the girl's
parents. There are also what I prefer to call professional
matchmakers, very often old women and widows, who have
easy access to women folk and also have enough information
about the prospective bride's character and skills. After
two or three trips to the bride's parents' house and
watching the girl working or walking in the house or in
many cases talking, and serving food with her present,
the boy's mother will discuss the matter with her mother
and her other female relatives in the family. The girl's
mother reports the case to her husband and his brothers.
If the agreement is arrived at, the prospective bride's
and groom's fathers and other close relatives such as
brothers and uncles meet to discuss the final terms of
marriage. Then a formal deputation (roybar) is sent to
ask the girl's hand in marriage. The amount of welwer

90
 (bridewealth) is settled with the girl's father or her
guardian (wali) and a day for formal kozda (Pashto) or
namzadi (Persian), meaning betrothal or engagement is
fixed.

Betrothal:
The betrothal ceremony is a khwara (big feast-)
prepared in the bride's father's house and most of the
eXpenS(3S are paid by the bridegroom's father. The expenses
for that night could be listed as one or two sheep, seven
to fourteen kilograms margarine or ghee, forty to seventy
kilograms of rice, sweets, tea and sugar. The number of
males and females invited for the feast and the amount of
gift exchange are determined by the two parties in advance.
The relatives and friends invited by the groom's father or
brother get together in the groom's father's house. Early
in the evening the groom's party including the groom,
leave for the bride's father's house. In the procession
the musicians and drummers play their musical instruments
and the dancers dance the Afghan national dance; by
turning around, jumping up and down and to the right and
the left and shaking their long hair they indicate their
happiness. The people carrying their rifles, shotguns and
pistols on their shoulders in the procession show their
happiness by firing into the air.
When they arrive at the,bride's father's house the
group is welcomed by a group of respected and elderly

91
people and the guests are led to the place which is well
furnished with Afghan rugs (ghalai, tagher), pillows
(balisht) and tushaka. All of the guests are served a good
meal and tea.
After the meal is served many jokes are exchanged
between the elderly men of the two groups. A typic~l

example is "The meal has been served and we cannot see any
reason why you are not leaving." The groom's group members
will respond by saying that they have a purpose for
sitting there and that is to offer "our son as your son,"
meaning as son-in-law. After joking some more one of the
experienced members of the bride's relatives on behalf of
his group will show their happiness and willingness about
the marriage. He then asks the imam present to read a few
verses from the Quran. The imam recites some verses and
then asks all the people present to pray for the happiness
and good luck of the parties involved and for a life-time
of good relations between the bride and the groom. Now,
the boy and the girl are formally engaged.

Bride wealth:
The groom's father, uncle or brother sits near to
one of the bride~ relatives and gives him one third or half
of the bride wealth in cash. The amount of bride wealth
is defined among the Almara villagers precisely and it is
16,000 Afs. ($1 = 50 Afs.) plus about 280 kgs. long grain
rice, 28 kgs. margarine, some lamb and ground beef to be

92
prepared for the guests from both sides on the marriage
cermony day (wada ~).

The amount of bride wealth was very high a few years

ago, as it is also in some other part of the country
today, from 40,000 to 100,000 Afs. A very well known
holy man4 named Muqtada who lived in Waziristan about
,
50 kms. away from the village of Almara in the territory
of West Pakistan came to the community and the surrounding
area and asked the people of the area including neighboring
villages to reduce the amount of bride wealth payments.
People agreed to the idea and applied the rule for awhile
but in recent years have deviated from the rule and the
fathers of the girls want more bride wealth secretly, not
in public.
I have to note that the parents are the decision
makers about all aspects of the marriage. In many cases
the bride and the groom may not know each other before
marriage if they are not from the same community. While
making their decision, the parents consider several
qualifications such as the girl's and the boy's good
health, proper physical appearance, acceptable manners and
characters, their education and skill and a good familial
background.
Physically, the girl should meet certain qualifications
to be accepted by the boy's parents. An informant
characterized an ideal girl physically fit for marriage
as follows: A girl should not be skinny. She must have a

93
round and full face with a high and thin nose. Her fingers
should be long and her eyes should be wide and large. Her
skin must be tender and she should have a small mouth and
white teeth.
According to the Islamic principles after the
engagement night (cozda shpa) the groom is allowed-xo visit
his wife (shaz) in her father's house. Some people approve
of the idea of groom and bride visiting (choghelbazi) in
the bride's house before the marriage ceremony. When this
is not the case, the groom will not be able to see his
"wife" probably for one more year until the marriage
ceremony is ended and the bride is tranferred to the
groom's father's house. Even if the groom was permitted to
go to his father-in-Iaw's house and visit his "wife," it
is socially forbidden to have intercourse with her.

Virgini ty:
Virginity is highly esteemed on the part of girls in
Afghanistan. The groom's mother in particular is responsible
for testing her daughter-in-Iaw's virginity. The procedure
involves putting a piece of white cloth in her son's and
daughter-in-Iaw's bed during the first night (nekah shpa,
Pashto, shab zafaf, Persian) when the couple go to bed in
the groom's father's house. If the evidence of blood is
found on the cloth, it signifies the virginity.
I believe the first reason for this rigid custom is
to be obedient to what Islam says. Based upon Islamic law
premarital sexual relationship is zana (adultery) and it is
extremely prohibited. Second, it has two functions: (a)
the presence of virginity indicates that the girl has not
had any premarital sexual relationship. It is considered
good manners and it is the norm among the Pashtuns. I
believe this is the manifest function of virginity~ (b)
The essence of this strict custom lies in its latent
function. Among the people who are mostly uneducated and
are not aware of the means and methods of birth control,
this type of custom is developed in order to control the
population growth in a meager habitat which cannot support
dense population. This practice also helps to prevent
promiscuous behavior and the possibility of venereal
disease especially among the young.

Pasharat (Freedom of Visit):

Until this time, except for the purpose of being
present in the time of the burial rites of any relatives
from the marriage parties, visiting to each other's houses
is banned between the two groups. Therefore, both sides
seem eager to fix a night for freedom of visit (pasharat),
after the engagement ceremony. This night is once again
a big festival. The groom's father honors the bride's male
relatives with a silk turban, chapan, (Afghan overcoat)
and handkerchiefs. The female relatives are provided with
clothing for special Afghan dress and teekrai (&~a~l). At
the very end of that night the bride's relatives are

95
provided with a fine handmade decorated handkerchief, made
by the bride, with a gold needle attached to it. This
piece of cloth is fixed to the turban of one of the groom's
male relatives signifying once again an official engage-
.
ment of the girl and the boy. As soon as the groom's
relatives leave tlB bride's father's house the grouRproceeds
to the edge of the hamlet and fires guns in the air to show
its happiness. In this way the engagement of the boy and
the girl is announced to the public.
One or two months after this event, the groom's father
invites his daughter-in-Iaw's relatives and prepares for
them a melmustia (a big dinner) and this time the groom
and his relatives present their new male and female close
relatives with turbans and clothing for females dresses
respectively as gifts. I believe the exchange of the gifts
between the two allied groups serve at least two functions.
First, it intensifies the ties of relatedness and intimacy
between the two groups (manifest functions), and secondly,
it serves to distribute wealth among the villagers Uatent
function).

Marriage Ceremony:
The fourth stage of the marriage process is the
marriage ceremony. Very often if the bride and the groom
both are of the proper marriage age usually between 20 to
30, the marriage ceremony will occur after a lapse of one
or one and a half years from the betrothal day. During the
marriage ceremony which lasts at least three days. all of
the relatives and friends of the husband and wife are
invited. In this ceremony again a great amount of rice.
margarine or ghee, beef and lamb, tea. sugar and sweets
are consumed. Once again certain amounts of gifts in the
form of cash or clothing are exchanged.
Among the Pashtuns, except for the bride wealth, the
amount of gifts being exchanged are approximately equal.
If for instance, 20 silk turbans and about 100 meters of
clothing of good quality for women dress and about 180
handkerchiefs are given from the bride's father's side
about the same amount will be given from the groom's
father's side. From this data we can see that many people
are involved in the marriage processes and ties.
In the present,many people in Afghanistan and other
Middle Eastern nations think of the bride wealth institution
as a characteristic of a transaction of purchase and sale.
This is particularly true among the educated people of the
area. as among the laymen in Western societies it is
considered a bad manner and a "negative" custom. It is true
that payment of 50,000 to 100,000 Afs. in cash for bride
wealth and about 50.000 Afs. in kind for other marriage
Axpenses and exchange of gifts is a great amount of money
for a 20 year old boy &nd his father. But we have to
consider the status of women if we discard this custom.
Evans-Pritchard (1952:115) warns us about the lowering of
the woman's status. In addition, the population explosion

97
is another possible consequence of abandoning this
institution. I cannot predict anything about the negative
effects of the elimination of bride wealth on the status
of women at present.
The idea of exchange of gifts and the institution 01'

bride wealth considered as a characteristic of transactions

of purchase and sale, diffused from West to the other
nations of the world. The people themselves look at this
matter differently. While collecting data about bride
wealth in Afghanistan, I asked different questions of
several persons in order to understand their attitudes
toward this custom. First, they believed that a small
amount of bride wealth and gift exchanges would lower the
bride's status among her new family members. Secondly, the
bride's father and her brothers and other close relatives
spend a big portion of the bride wealth in purchasing more
than a dozen of the items in the bride's outfit and dress
and several pairs of shoes, and arrange for the number and
type of house furnishings (including chests, pillows,
quilts and household utensils), as dowry in order to make
the new couple self-sufficient if after the marriage
ceremony the couple gets separated from the rest of the
groom's father's family.
On the marriage day, all of the male and female
relatives and their children are invited to the groom's
house and are served the meal (khwara). Around J p.m. they

98
leave for the bride's father's house in order to transfer
the bride (~) to the 'groom's father's house.
Near to the bride's father's house the group of
people called worabani (male relatives and close friends)
very often faces resistance and sometimes teenager boys
throw stones toward them and do not allow them to approach
the bride's house. Some other young relatives of the
bride go to the big group of the invited people (~ora)

and ask them to shoot a target made of stone. Within the

bride's father's house, teenager girls scorn the groom's
relatives when they sing songs. The bride at her removal
from her father's house, cries and resists the move. When
the time comes for the bride to move, her brothers and
cousins sometimes put a big lock in the main gate of the
hamlet. All these customs are similar to what Radcliffe-
Brown (1952:49-50) reported among different peoples in
Africa. Customs of this type are very common among all
ethnic groups in Afghanistan. The explanation that fits
the various instances is that they are a symbolic
expression of the recognition that marriage entails the
breaking of solidarity that unites a woman to her natal
family.
Many anthropologists regard marriage as a rite of
passage. 5 It involves a change in status from single to
married status. Among the Almara villagers this change of
status could be represented through proper patterns of
behavior and clothes worn by the bride. The removal of the

99
bride at her marriage from her father's house to her
husband's house, that is to say, the practice of
patrilocality, produces a temporary disequilibrium. The
bride's removal is a loss for her small and close-knit
family group and disturbs the situation. The intrusion of
a stranger into a group of kin is similarly a dist~~bance.

Among the Almara villagers and many other ethnic groups

in the country the bride, during the early stages of her
marriage, gives presents to children of her new family and
exhibits proper and polite behavior toward all members of
the family in order to be accepted as one of them.
During her adolescence an unmarried girl wears a long
Afghan type colorful kamees (dress) and white pertoog
(pants). Very often she does not cover her face with her
teekrei (shawl). When she is married she styles her hair
differently, wears a colored partoog and usually covers her
face even from some of her close kinsmen. A reconstruction
of a disturbed situation inevitably takes time and a newly
married bride in Almara could not be an exception to this
rule.
On the third night of her removal to her husband's
family, while most of the guests are dismissed, the groom's
father invites his very close kin such as brothers, uncles
and cousins and imam (the religious specialist of the
village) from the mosque. After the dinner while the groom
is sitting with the group of male guests and his relatives,
two persons are chosen by the imam from the group and are

100
 sent to the bride, who is with the female members of the
new family and some women from her father's group, to be
asked who her pader wakeel (the person who could negotiate
with her husband about her maher) is. Maher is the amount
of money (10 Arabic Derhem minimum and no maximum limit;
5 Derhem = $1), which according to the Islamic law-goes
directly to the bride. The bride is customarily supposed
to resist for awhile, and keep quiet until the two
witnesses have come to her several times. Finally, she
chooses one of the groom's close relatives as her pader
wakeel (guardian) and the two witnesses report the case
to the imam and then the imam negotiates the maher with
him. After the pader wakeel becomes satisfied with the
amount of maher, the imam asks the guardian three times if
he has given and if he is going to give his "daughter" to
the groom for the maher determined. Pader-wakeel must
confess three times that he was and he is going to give his
"daughter" to the groom for the amount of maher determined.
The imam asks the groom if he accepts the bride for the
maher which was determined. After a positive response
from the groom, the imam reads a few verses from ~uran in
the presence of the individuals gathered. At this moment
the groom holds a big knife in his hands, symbolizing a
warning to anyone who has the intention to harm him, and
''makes him idle" (impotent) by magic. 6 It is believed that
when the imam reads verses (Khotba), from the Quran and
someone knots a piece of thread or rope and keeps it knotted

101
or throws it somewhere the groom may become impotent. Thus
when the imam reads the khotba, the groom withdraws and
reinserts the knife from its cover to destroy the magic,
if there is any. After the khotba was read the couple is
legally married and their offspring are considered their
legitimate children.
The bride's and the groom's parents will wait
impatiently until they hear that the bride is pregnant.
The couple and their parents will become very happy if the
first child is a boy and it is, I believe, due to the
prevalence of the system of patrilineality which favors
boys over girls. If a boy is born to the new couple, again
there will be exchanges of gifts in cash and in kind between
the bride's and the groom's relatives. Much food will be
served and sweets will be distributed.
On the third day after the child's birth the imam
is asked to come to the house and announce Islam to the
child by conducting the Azan,7 the Hananfi call to prayer:
Allah 0 Akbar (four times) (God is most great)
Ashhadu AlIa ilaha illallah (twice) (I testify that
there is no God but Allah)
Ashhadu anna Muhammadur Rasulellah (twice) (I testify
that Muhammad is the messenger of God)
Hyya ella s-salah (twice) (revive for prayer or come
to prayer)
Hayya ella 'l-falah (twice) (come to prosperity)

102
 Allah u Akber (twice) (God is most great)
La illaha illallah (There is no God but Allah)
After conducting this religious rite which I may
call it a rite of passage, the child is considered as a
Muslim individual. People believe that the child, although
as yet immature, becomes conscious of his (her) faith.
The important impediments to Muslim marriage are
given in the Quran. Chapter 4, verse 2), of the Holy Book
stipulates the kinship, affinal and foster prohibitions
as follows:
Forbidden to you are your mothers, your
daughters, and your sisters, and your
father's sister, and your mother's
sister, and your brother's daughters,
and your sister's daughters, and your
foster-mothers, and your foster
sisters, and your mother-in-law, and
your stepdaU$hters who are under your
protection Lborn7 of your women to
whom you have gone in-but if you have
not gone into them, then it is no sin
for you ~o marry their daughter~ -
and the wives of your sons who /spring7
from your ovm loins. And litis -
forbidden to yo~ that you should have
two sisters together, except what hath
already happened LOf that nature,? in
the past. Look! Allah is ever
Forgiving, Merciful (Pickthal 1957:95).
Intercourse among all men and women except for the
wives and husbands is considered ~ (big sin). Having
coitus even with one's own wife while she is having haiz
(menstrual cycle) or nafas (time between child birth and
regaining the menstrual cycle) is forbidden religiously.
Related to Islamic principles is a prohibition of having
sexual intercourse on the part of both husband and wife.

10)
After the child is born, at least, until after the woman's
lochia has stopped and her wounds healed and she regains·
her regular menstrual cycle, the husband and the wife
cannot have communion. The post-partum sex taboo 8 (narawa
or haran) is a rule among the Almara villagers and all
other Muslims which lasts for forty days. After tQe forty
days after the birth there are no religious and/or social
negative sanctions with regard to sexual relationships
between husband and wives. The wives resist having coitus
with their husbands for at least one year after the birth
of a child. The people under study believe that a pregnant
woman should not nurse her child because her milk is not
healthy.

Polyganous Marriage:
In principle (the Almara villagers not being an
exceptional case) all Afghan ethnic groups are polyganous.
Islamic laws permit a man four wives. In practice usually
people cannot afford it and it seems to me that the
institution may diminish in the near future. The factors
are many fold: (1) high amount of bride wealth payments.
(2) Great amount of expenditure for gift exchange. (J)

Great amount of expenses for betrothal and marriage

ceremony, thuy (Feast) and invitations. (4) The problem of
bringing up many children and their education and finally
(5) taking care of the wives themselves seems to be hard
today.

104
 Although it is difficult to trace the origin of the
institution the history of Islam enlightens us that at the
dawn of Islam, when many of the Arabs and other Muslims
fighting (ghazawat) to extend Islam, many men were killed
(shaheed) for their faith. Consequently, many women were
widowed. Mohammed being aware of the situation, permitted
"-
and even encouraged the Sohaba 9 (Mohammad's Companions)
to have more than one wife.
This point supports Linton's (1968:86) view that
there were more females than males in many primitive
societies, probably because men engaged in more dangerous
occupations and because of higher infant mortality rates
among males. Mckusick has reported the cause of higher
infact mortality among human beings as follows:
The ratio of males to females observed at
birth is called the secondary sex ratio
and is about 1.06 in whites in the United
States. The primary sex ratio, that of the
zygotes, is considerably higher, perhaps
1.;0. The reason that Y-bearing sperm have
an advantage over the X-bearing sperm in
fertilization is unknown. Whatever the
explanation, sex chromatin studies of early
embryos show an excess of males in a ratio
of about i.; to females. What accounts for
the decline in the ratio between conception
and birth? One possibility is that a
proportion of male zygotes succumb to X-
linked recessive lethals, but there is
little direct evidence to support this
plausible explanation. Another possibility
is that the female with two X chromosomes
enjoys heterotic vigor. Certainly the
female has a greater survival throughout
the span of life, both intra- and extra-
uterine. The two sexes become numerically
equal in middle life and in the older age
groups women are more numerous than men
(Mckusick 1964:81).

105
 Ember (1974a) also found that polygynous societies
were significantly more likely to have an unbalanced sex-
ratio in favor of females than those which were monoganous.
I believe the system of patrilineality is the factor
most responsible for the practice of polygyny. The
importance of the male, trac ing one's genealogy and.
identity through the male line plus the question of
inheritance forced the people to develop the system of
polygyny not only in the village of Almara but among all
the Pashtuns of Afghanistan. Thus, when polygyny occurs
it is usually because the first wife has no male children.
In any case, polygyny is dying out and the investigator in
the village of 136 households witnessed the occurrence of
only six incidents of polygynous marriages.
Three cases of levirate and one case of sororate was
reported to this researcher. In the case of Almara
villagers the two brothers' widows were married to the
younger brothers who were not married. The third one was
married to the second brother and only brother left who
already had another wife. The sororate case happened when
an individual died because of tuberculosis. The widower
did not want to break his ties with his in-laws and he
married his sister-in-law (khena) after his wife's death.

Endogamy vs. Exogamy and Hypergamy vs. Hypogamy:

The division of labor not being specialized in the
community, does not involve a caste system. Reflecting the

106
fundamentally egalitarian nature of the Pashtun society,
no distinctions are made among clan members; all are
considered equally descended from a common ancestor.
Moreover, due to the meager physical environment and lack
of land a distinctive class structure is not observable
in the village. Therefore, the people practice exogamy;
however, several cases of exogamous marriage between
different ethnic groups were reported to and observed by
this researcher.
Because of the absence of a caste system (in the
sense of the Indian caste system) and the absence of
different and distinct class, both hypergamy and hypogamy
are absent. Hypergamy is a rule that states that one's
wife's group is of lower status than one's own. Equally,
that one's husband's group is of higher status than one's
own. Hypogamy is a rule that states that one's wife's
group is of higher status than one's own. It is the
opposite of hypergamy. I prefer to label the Almara
villagers' marriage relationships as homogamy. It is the
cultural practice of marrying someone like yourself: from
your own group, class or caste.
I must note that it is not the case in the whole
country. Wherever the class structure is distinctive and
the gap between the poor and the rich is great, the
principle of hypergamy is the rule or at least homogamy
prevails. The question of purity, as it relates to the
caste system in India and other societies, is not relevant

107
in this respect. All Afghans are considered equal as
regards the issues of purity and marriageable pairs.
Considering the entire country, there is one exception
to this rule. In practice the parents do not approve of the
idea of marrying their daughters to poor individuals.
Several reasons were given to me. First, the parents do
not want their daughter to face economic problems after her
marriage. Second, poor people cannot afford the marriage
expenses. Third, hypergamy (from class A to class Band/or
from lower to higher class) indicates mobility from lower
status to higher status on the part of the girl, therefore,
it is favored.

Divorce:
Although Islamic principles and sharia permit
spouses' separation, in practice, expelling a wife from
the family is socially strongly sanctioned against among
the Pashtuns of Afghanistan. In Almara the investigator
was not able to find even a single case of divorce. A
divorced man cannot live in his natal community. Attempting
such conduct will not only damage a husband's and a wife's
status, but will bring shame lor their ancestors and
successors as well as for their whole lineage. In a
society in which more than 90 per cent of the population
are illiterate this rigid social norm concerning divorce
is likely to be functional.

108
 In this chapter, I discussed the meaning of marriage
and I gave different definitions to it. Then stages of the
institution followed by the villagers were described.
Further, the concepts of bride wealth and virginity and
their manifest and latent functions were explained.
Finally, I considered the rules of endogamy vs. exogamy
and the hypergamy, hypogamy and homogamy. In the following
chapter in the light of what has been said so far, I
discuss the political organization and political blocs in
Almara.

109
 FOOTNOTES FOR CHAPTER IV

l For more information and detailed discussion of

marriage definition and relevant issues on this topic, the
readers are referred to the cited references.

2Any arrangement of persons in institutionali~ed

relationships.

JBride wealth involves a payment from the groom or

his relatives to the bride's relatives in cash or in kind
on marriage.

4By the term holy man in this context, I mean all

persons occupying holy status. Holy man in this sense
serves roughly as translation of Pashto word mia, Pir or
bzerge as used by the Afghans not theologically oriented.
A mia or pir mayor may not be a Sayed, a descendent of
Prophet Muhammad. A mia or pir is a man who dedicated
himself to religion in the tradition of Persian Sufis. A
pir (holy man) has many murids (followers). He plays the
role of a spiritual leader, making his religious and moral
teaching relevant to the social problems of his day and
because of his holy status he often serves as a mediator.
Barth (1959a:56-6J and 92-104) uses the term "saint" in
the same sense.

5Significant stages in status from birth to death are

often referred to as "rites de passage." Birth, puberty,
marriage and death are almost everywhere marked by societies
with social, religious or political significance. Because
of their special and obvious physiological characteristics
such as the growth of the breasts and menstruation, there
is no formal rite de passage for girls at their puberty
in Almara and elsewhere in Afghanistan. But boys were
examined at their puberty in public. This was important
because mature adult members of the community have rights
and obligations in the village. The test is a simple one.
An experienced man in the presence of several other men
would take a tesbah (beads similar to women's necklaces
with which people say prayers in the Middle Eastern
Countries) and measures the boy's neck around and marks
the tesbah. Then the boy is asked to take one of the beads
with his incisors and pass his head through the chain of
the double strand beads. If the head is passed through the
beads, the boy is considered at his puberty and is intro-
duced as an adult. If not, then he is still to wait for
his puberty.
110
 6 The villagers believe in two types of magic:
contagious and homeopathic magic. For more information
see J. G. Frazer's The Golden Bough (1911:52. K. F.
Otterbein'S Comparative Cultural Analysis (1972:104-108.
158 and 161).

7Azan is the Hanafi Muslim call to prayer. Usually

people know it by heart.

8Postpartem sex taboo is the custom of prohib"i ting a

resumption of sexual intercourse between spouses for a
year (or less) or more after the birth of a child.

9Muslim individuals who had seen Mohammad.

111
 CHAPTER V

POLITICAL ORGANIZATION AND POLITICAL BLOCS

In the Preface to African Political Systems (1940)

Radcliffe-Brown wrote that political organization is con-
cerned with " •. . the maintenance or establishment of social
order, within a territorial framework, by the organized
exercise of coercive authority through the use, or the
possibility of use, of physical force," (in Fortes and
Evans - Pritchard 1940:xiv). This definition employs two
different criteria. First, reference is made to the end
to which political activity is directed; the regulation
and control of the social order within a certain territory.
Secondly, the means whereby this is achieved is brought in;
the organized exercise of authority, backed by force.
Because some degree of social order is attained in every
society, the first criterion seems to be more useful.
Difficulty arises with the second of Radcliffe-Brown's
criteria when it is applied to many of the smaller-scale
societies. In such tribes as the Nuer of the Sudan, the
Tallensi of Northern Ghana, the Baluchs and Pathans of West
Pakistan and the Pashtuns of Afghanistan, there are no
specialized political functionaries or organized structure
of authority backed by physical force. Therefore, the

112
definition proves not to be useful for our purpose in this
study. In any case, we do not want to limit our perspective
to one definition in this particular respect. Because the
cultures are so different and the political organizations
are so varied, it is not easy to find such a definition to
include much of the ethnographic data.
Current in political anthropology are three related
emphases: process, decision-making and the universality
of politics (Salzman 1971 :433). It is the purpose of this
chapter to examine how the Almara villagers and their
neighboring communities interact and what are the norms and
rules which sustain social order. In other words what is
the range and scope of these rules and how are they
enforced? Who holds the power and authority in the
communities? Who are allies and who are enemies? There is
not much point in distinguishing too precisely between the
fields of political organization and law, because they are
very interrelated. Therefore, even some issues related to
the anthropology of law will also be discussed in this
chapter.
The centrality of the process in political anthro-
pology is implied by Swartz, Turner and Tuden (1966:7-8)
in their definition of the study of politics as ", ,.the
study of the process involved in determining and imple-
menting public goals and in differential achievement and
use of power by the members of the group concerned with
these goals, and achieving settlements are the prime foci

113
of interest." All these factors can be analytically
organized into "patterned sequences of phases" which
provide diachronic explanations.
Bailey (1969:ix and viii) outlines several universal
political processes: competition over resources, con-
frontation-subversion-encounter, brokerage, collusi8n and
umpiring. In Strategems and Spoils (1969) he draws
examples from the Swat Pashtuns, an Indian village, the
fourth and fifth French Republics, and the British Cabinet.
In a somewhat similar direction, Barth (1966) argues that
social forms or structures can be best explained by the
construction of generative models which specify the
individual decision making and consequent social process
from which the forms and structures emerge. Methodologically,
these studies entailed extended case study analysis. In
any investigation and analysis in this chapter, I pursue
almost a similar path.

Segmentary Opposition:
In order to understand the Pashtuns political
organization we should consider the functioning of their
lineage system. As I pointed out in chapter III, the
system of patrilineality prevails among the Pashtuns. They
practice a lineage system which follows the principle of
segmentary opposition. Therefore, many of the political
and legal affairs of these people are controlled by the
rule of segmental opposition.

114
 The principle is a simple one and it is illustrated
by diagram No. 8 below:

A B

nn
1 ..2
,......~
J 4
.--....

1 m n p
a b c de f e h i j k 0

In figure above, lal and Ibl represent discrete

agnatic groups descended from a common ancestor, I, in
Almara. When it comes to political action and support,
and especially where feuding and warfare erupts, agnatic
group lal will stand against group Ibl unless someone from
group Icl makes trouble, in which case lal and Ibl unite
as a single group III against group 121. Should an
altercation involve a member of group Ihl, there would be
an opposition between agnatic segments IAI and IB/. Should
someone from Iml become involved in a feud with a member

115
of lal, the confrontation could involve segments III and
IIII, and an attack perpetrated by another political
community would unite the entire lineage.
In this system the descent group is segmented
symmetrically in the sense that there is a balancing of
units in each generation. An ancestor without a brother
,
cannot constitute the focus of a lineage segments since
there can be no opposite. According to Fortes "the guiding
ideas in the analysis of African lineage organization have
come mainly from Radcliffe-Brown's formulation (Fortes
1953:25)" of the structural principles found in all kinship
systems. Among these, two principles are outstanding:
Unilineal descent and the principle of equivalence of
siblings. The principle of unilineal descent resolves a
problem of identification through one's parents. In
patrilineal descent sons are precisely identified with
fathers. The principle of equivalance of siblings defines
the bond of merging of the social personalities of siblings.
Weare concerned here with political organization for the
purposes of the maintenance of order and defense rights in
situations of conflict among the Pashtuns. 1
Tensions and minor conflicts among the collaterals in
Almara arise, but not so far as to become difficult for the
relatives to control. (See Footnote 1) Evidence from
Almara and other Pashtun tribes in Afghanistan indicate
that there are many checks and balances to reduce the degree
of conflict intensity among the close relatives. Historical

116
records of the Almara village witnessed many incidents of
endemic warfare between the people of Almara and the
eastern neighboring tribe, Asmayel-khel. The descendents
of Muhammed, named Sayeds, are respected throughout the
Islamic world. The Yahyakhel, one of the five lineages in
the community, was the last lineage to move into th~ area
and they settled between the two hostile groups. My
informants reported that if the Sayeds had not moved into
kooze (low) Almara, the two neighboring political communiti$
could not have lived near each other, and they would have
been attacking one another's territory continually till
present.
Dupree (1973:425) describes the Pashtuns social con-
dition in the historical perspective as follows:
The British in India, happy at creating
a no-man's-land between themselves and
Tsarist ambitions, faced other problems.
The Pashtun tribes, almost genetically
expert at guerrilla warfare after
centuries of resisting all comers and
fighting among themselves when no comers
were available, plagued attempts to
extend Pax Britannica into their mountain
homeland. Manv raids into the Indus
Valley originated outside the range of
effective punitive action •..
Under these conflicting circumstances the likelihood
of fission of the close collaterals and the fusing of these
small units with other similar but unrelated (if related
they are very far collaterals), seems to be hazardous for
the survival of the penple, because they live in one
community and share mountain forests and irrigation system.

117
It is also against a very well known sociological rule.
Coser (1956:94) has said that:
Groups in any sort of war situations are
not tolerant. They cannot afford individual
deviations from the unity of the coordinating
principle beyond a definitely limited degree.
Also, Coser (1956:104); and Levine and Campbell (1972:J2)
maintain that outside conflict increases group cohesion:
Lthe conflicting7 groups may actually
attract enemies~in order to help maintain
and increase group cohesion. Continued
conflict being a condition of survival
for LConflictin~ groups, they must per-
petuatelly provoke it (Coser 1956:104).
Gluckman in his book Custom and Conflict in Africa
(1969) notes that:
men quarrel in terms of certain of their
customary allegiances but are restrained
from violence through other conflicting
allegiances also imposed by custom - those
who are made enemies in one set of relation-
ships, are made allies by other relationships,
and so the social order is reserved through
a series of checks and balances (1969:2-26).
The conflicting relationship between the collaterals
in Almara are minor ones and does not exceed certain
limits. These kinds of conflicts are called kuranei
khafgan (familial conflicts). If a minor problem arises
between collaterals, the elderly men of the two groups
mediate and resolve the conflict just by asking one of the
individuals, very often the younger one, to go to the elder
individual's house and apologize for the misconduct. Based
upon my observations and my lifetime experiences, I believe
that alliances are not sought with small, distant collateral

118
groups against one's close collaterals, and that such
allies support each other against the prospective rivals
of partners, both in the debates of the councils and in
warfare. In addition, neither historical evidence nor
recent incidents of warfare in the area support Barth's
factionalism theory. Several of my informants recollected
their observations as follows:

Feuding~ (dushmani):

Case No.1: Feud

Place: Almara
Date: 1941
Thirty-six years ago in the winter time in Almara
where snow had fallen, about a dozen men from the village
and several men from the neighboring community of Ismaelkhel
went to the Taragher (black mountain) to hunt zorka
(partridge). A flock of partridges fled and the hunters
followed them. A man from Almara captured a partridge
which had fallen in the snow and could not fly. He put his
hand on the bird. Another man from the community of
Ismaelkhel seized the bird's feet. Finally these two men
quarelled over the ownership of the bird. The man from
Almara was hit with a stick allover his body and suffered
several injuries. Other hunters ran toward the two
quarrelling men and separated them. The injured man was
carried to the village and his brothers were advised to
take him to the nearest Pakistani hospital (the people of

119
the area very often go to the Pakistani doctors).
However, the injured man died near the border and the
body was carried back to his home at midnight when nobody
was around. His two brothers secretly went armed to the
murderer's hamlet. The brothers waited in ambush in front of
the man's hamlet until dawn when the man, without any
,
pre-
cautions, came out of his hamlet. After he made his ritual
abolution and before his trip to the mosque, for the dawn
prayer, he was shot to death. The two brothers ran toward
their own community. When the people from the village of
Ismaelkhel heard the gun shots and they received the news of
their relative's death, all men took their rifles, following
the two brothers, and started running toward Almara. The
second deceased was Nayeb-Salar's (son of Barak kharl, a ftmDus
man, who lived between the two communities) servant and having
no information about the death of the man from Almara, he got
very angry and wanted revenge. The experienced elderly peqple
from Almara informed Nayeb-Salar about the death of their son.
Then Nayeb-Salar, as a wise and experienced man, took the holy
Quran on his head signalizing mediation and the pursuit of
peace as a mediator. He visited the people of bothcarununnies
as soon as he could and informed them that revenge was an
equal in kind and asked that both sides while all men were
armed for the warfare, to return to their villages and take
care of the deceased burial rites. Everybody was satisfied
with the decision and the parties involved returned to their
villages and the incident was over.

120
 The case proves the opposite of what Barth believes
is prevalent among the Swat Pakhtuns. The collaterals do
not make factions (dala) against their own collaterals but
they join them as members of one dala (bloc) against their
common enemy in times of feuding, revenge and warfare.
According to Gluckman (1956:24) "the feud is ..a
lasting state of hostility." Otterbein (1972:85-89) has
defined feuding as "a type of armed combat within a
political community in which if a homicide occurs, the kin
of the deceased takes revenge by killing the offender or a
close relative of his." I should note that feuding is
present among the people under study. Revenge is sought
through killing the murderer and no.t his close relatives.
Very often the dead man's brothers, sons or his father, if
he is not very old, are responsible for seeking the revenge.
A man might kill his enemy where and when he could - in a
chance encounter, in a meeting deliberately sought or in
a carefully laid ambush. Avengers who were not "strong"
enough to revenge received help from close collaterals. If
the enemy fell to the rifle of a relative or injured by his
sataw (knife), the shot or the injury was always credited
to the avenger, who was expected to assume responsibility
for it. The dead man's close kin accepts the kill as a
revenge in the feud, and either make peace or continue the
feud. When revenge is accomplished and the victim's
relatives do not know about it, the word has to be sent to
the victim's family. The Pashtun customs do not allow the

121
the revenger to rob his victim; he is supposed to murder
him only to defend his honor and fulfill his social and
religious obligations and not to enrich himself. After
the victim's death, the deceased's body must be put in a
place safe from carnivores and climatic factors. The
victim's eyes and mouth should be closed by the mur.aerer
as it is done in normal and natural death. The victim's
property such as his rifle, pistol, knife, watch, money and
other important items should be. kept and returned to the
family of the deceased. The incident must be reported to
the victim's relatives as soon as possible so that the
deceased's body will not be destroyed by climatic factors
or animals.
My field observations suggest a definition of feuding
which is slightly wider in scope yet complementary to that
which Otterbein (1972) has suggested. As case number 1
shows the feud occurs between the political communities
(Almarawal and Ismaelkhel) as well. Several other examples
such as murder of (8) from Mondozai and the killing of (p)
from Zani khel, two neighboring communities to Almara also
supported the existence of feuding between the political
communities.

Case NO.2: Feud Over Land

Date: 1965
Place: Nader Shah Kot
While (S's) mazdoran (laborers) were plowing a section

122
of field, (P) appeared and asked the men to stop the work.
The mazdoran (laborers) stopped plowing and went to their
badar's (client) house and reported the case to him. (S)
was a leader of his tribe, and a powerful man. In the
morning again he asked the laborers to go to the field and
finish the tilling. This time carrying a rifle {S~

accompanied the workers to the field. The workers again

started plowing. (P) watching the situation from his
neighboring hamlet took his rifle and came to the spot and
resisted the continuation of the plowing again claiming
ownership of the field. (S) responded by shooting (P) to
death.
There was no confrontation between the two "tribes."
The deceased body was buried. Because of his tribal power
and prestige, the case was not investigated by the govern-
ment. (PIS) relatives, because of their poor economic
situation and lack of sufficient manpower, left their
hamlet signifying that they neither could tolerate the
situation without taking revenge nor had the power to do
so. (PIS) relatives waited until one of (P's) son's reached
his early 20's. Without much talking about his plans to
other people, one day early in the morning he came down to
Mandozai and waited for (S). His plan was an accurate one
and after a few hours (S) stopped his jeep in front of the
shop where the young man was waiting. (S) was shot to
death and other men in the jeep were also slightly injured.
The young man fled and did not give any opportunity for (SIS)

12.3
guards sitting with him in the jeep to take retaliatory
action. (PiS) family returned to their abandoned home about

one year after (S's) death. The relatives of both sides

admitted that the revenge was equal and the peace prevailed.
But no one can predict for sure that this will be or is the
end of the incident because while still admitting that both
sides were equal (S's) sons might prefer to continue the
feud by killing a second male from the avenging family.
If this happens, it will not be considered a surprise for
the people of the area. Sometimes the feud might range
backwards and forwards for years or even generations, each
family being in turn murderer and victim.
From the above mentioned cases and case number 1
on page 119 , I defined feuding as a state of recurring
animosities between families or groups within or between
political communities motivated by a desire to avenge an
offense such as insult, injury, deprivation or death. Very
often when a feud is conducted within the political
community, if the avenging family, shortly after the
murder of their relative, cannot take revenge or do not
want to settle the dispute because of the threats on the
part of the murderer's family or because of shame on the
part of the victim's family, leaves the community. It is
regarded as shameful for the son's and the brothers to not
take revenge and still live in the same community with
their enemies. Sometimes the murderer may leave the
village. Taking leave of the village is very much dependent

124
upon the aggressor and/or victim's economic situation and
degree of power. If the murderer's family is rich and has
more men, then the avenging family may leave the community.
If the victim's family is wealthy and powerful, the
murderer's family may leave the village. In some cases the
antagonistic parties involved, because of threats qnd/or
inability to take revenge, cannot tolerate to live in the
same community with their rivals where the interaction is
face-to-face. Feuding parties within one political
community often share the same water channel system, common
forest and a common mosque where they pray five times in
24 hours. Therefore, at least, one side is forced to leave
and go where they can make their living within the country
or even sometimes in Pakistan or India.
Feuding by my own definition is present among all
Pashtuns of the area. There are two ways of coping with
this problem: (1) through taking revenge by killing the
offender or, rarely, a close relative of his. This custom
of killing of murderer's relative has been changed
recently. Revenge is sought from the murderer. This is
an effect of Isla.m: the gatel (killer) is responsible for
his own actions. I must note here that a Pashtun will
never murder a woman for revenge because according to the
people (a) she is not strong enough to defend herself:
murdering a "weak" person for the sake of revenge for a
"strong," a man, does not bring credit c '1'or the avenging
group. {b) If she is married, the avenging group gets

125
involved with two different enemy groups, the agnates of
the murdered and her-in-laws. Another way o£ dealing with
feuding is (2) through compensation. When murder occurs,
planned or unplanned, the o£fender group very often in-
dicates their willingness for peace, negotiations and
dispute settlement. They offer the offended group ,a tra-
ditional blood price which amounts to 60,000 Afs., 2 sheep
and 1 unmarried girl.

Warfare (Luya Jugra):

otterbein (1972:89-9J) has defined warfare as an

armed combat between political communities. Warfare also
breaks out in£requently in the culture between the political
communities and tribes. The causes for war could be listed
as offense to each others political territories and
especiallY mountains and forests.

Case No. J: Warfare

Place: Paktya Province
Date: 1969
Eight years ago warfare broke out between the Zazis
and the Mengal over a section of forest in the mountains.
The war lasted for several days. Automatic machine guns
were used in the battlefield and a Mengal village called
the Cherga Keley, where 500 households were residing, was
burned down. People believe that about 80 persons were
killed. The war was big and the loss was great.

126
 The government received the message and many soldiers
and policemen were sent to the area. They could not stop
the war because the government did not want to get directly
involved. Therefore, the governor of the Province invited
several experienced and learned men from the council of
elders from the capital of the Province to go to the
, battle
field to mediate and stop the warfare. The council members
accepted ~he invitation and suggested to the governor that
in order to make the mediation more effective he should
invite the holy man, Muqtada of Waziristan,to join the
mediators. Muqtada pir (holy man) was invited and after
one day he arrived at the capital of the Province. One
day later the mediators went to the Mangel and Zazis battle-
field. When the two conflicting groups received the
message that the mediator including Muqtada pir had arrived
in their villages, both sides sent their representatives to
the mediators in order to understand what they wanted. The
mediators advised both sides to stop shooting and killing.
Both sides accepted their advice and the war was stopped
and peace was accomplished.
Let us return to the question of factionalism and
political structure. I split the question in two parts:
(1) factions and blocs at the village and tribal level,
and (2) political structure of patrimonial ism and dawrah
systems at the state level.

127
Factionalism and Blocs:
Factionalism and dalabazi (blocs) at lineage and
tribal levels follow the principle of segmentary opposition.
I have to note that many people from Almara or other
Pashtun villages have businesses and even marriage ties
outside their own lineage or tribes or within a dif£erent
ethnic group or province. But when the questions of nomoos
(honor related to the individual, family, lineage or tribe),
ghairat (bravery), sharm (shame) and "Pashto" (the Pashtuns
way of living, their laws and keeping their honor and
dignity) come in, no one can go further than the limits
established by the Pashtuns codes and ideologies. For
instance, a villager cannot sell his land to other than his
own relatives and villagers. A man without the consensus
of other villagers cannot give asylum to an individual who
murdered or abducted a woman from another community. An
individual cannot make any kind of deal with a disrespectful
person such as a ghal (thief), gamarbaz (gambler) zani
(adulterer), loti (homosexual) and gatel (murderer) or
others.
The villagers"' economic, social, political and legal
affairs are controlled by the kalei jirgah (the council of
elders). Members of the council are not elected. Barth
(1959b:9) has said that a jirgah among the Swat Pashtuns
includes all men in the community. A jirgah, and maraka
in Pashtun communities in Afghanistan depending on the
importance of the case may include all men or representatives

128
of each lineage or in some cases representatives from each
family in the community. Often members of the council of
elders are the local politicians and informal judges who
make the judgment about the trouble cases and enforce their
decisions through the Pashtun codes. These individuals
may also serve as mediators and arbitrators within,and
outside the community when they are in need. We will
discuss the mediation and arbitration procedure further in
chapter 7.
The Pashtuns do not take their quarrels, injuries,
murders and other trouble cases outside the village by
bringing suits against one another in the government courts.
Even the trouble cases such as feuding, warfare, conflict
over land, mountain forests, water right, and other trouble
cases between the political communities are mostly resolved
through the jirgah or maraka. In every case all members
of the council have a right to speak in the council meeting.
There were not scheduled meetings of the council. Meetings
are called whenever a conflict, a trouble-case or confront-
ation within the political community or between the
political communities arise.
There is no official messenger to notify members of
the council of scheduled meetings and to be paid for his
service. The members may inform each other in the mosque.
In many cases a young man will be asked by an elderly
member of the council to take the message to the jirgah or
maraka members.

129
 Sometimes the village barbers are sent to take the
message and notify the council members about the content,
time and place of the meeting. If the village barber is
utilized as a messenger, in addition to other services
such as hair cutting, he gets paid a portion of each
village household's yields during the harvest time ......
Some of the council members, in addition to mediating
and arbitrating within and between the political communities,
quite often play the middleman role between the villagers
and the government officials. It is here that some of
these smarter middlemen climb the ladder and get into
official politics. Some of them may become officials in
government, and some may run for representative in Wolosi
Jirgah (Lower House) and/or Meshrano Jirgah (Upper House).

Patrimonialism and dawrah (cycle):

When I discuss political structure of patrimonial ism

and dawrah (cycle), I am not founding my theory upon the
data collected from Almara alone. As it was mentioned
before, this village "unfortunately" does not have many
officials and as yet has not had any of its members from
the village in higher positions in the government and/or
elected in the Lower or Upper Houses. The theory is based
upon my observations during the two elections (196J, 1969)
in the country and also Q1 what other scholars have written
about the political structure of Afghanistan and Iran
(Bill 1974; Salzman 1971; Dupree 197J, 1974a). I firmly

1JO
believe that it would be premature to discuss and make a
judgment about the new Republic established by the popularly
supported coup de tat (July 17, 1973) under the leadership
of General Mohammad Daoud, the first elected president of
the country. I leave this assessment and judgment for the
future because change in the social and political structure
of a traditional society under any kind of political regime
requires a sufficient amount of time.
The German sociologist Max Weber in his classification
of the traditional political systems includes two types
which are termed patriarchal and patrimonial (in Bill, 197~.

All traditional systems come under the patriarchal type

and generally speaking they are confined to household
kinship groups. According to Weber in this type of system,
the authority relation is one that binds master and family.
There is no administrative staff and machinery. The
relationship between the patriarch and members of the house-
hold is personal, the members obey him and he commands.
Command is his right and obedience their duty. Originally
the efficacy of this belief depended upon the fear of
magical evils that would befall the innovator and community
that condoned a breach of custom (Bendix, 1962:330-331).
On the other hand, the patrimonial system is one in
which an identifiable administrative structure develops and
spreads throughout the particular society or empire.
Administration becomes more complex and specialized. As a

1~
result the ruler's resolution with the subjects tends to
be filtered through a network of bureaucratic personalities.
Due to this intricate and differentiated administrative
machinery the fear of magical evil becomes milder. In
essence there is not a great difference between these two
systems. Actually the patrimonial type represents~little

more than an extension and expansion of patriarchalism.

The relations between ruler and ruled, leader and led,
master and servant, king and subject were basically the
same in the Weberian categories. Thus, Reinlard Bendix
(1962:)60) defines patrimonial leadership as an extension
of the ruler's household in which the relation between the
ruler and his officials remain on the basis of paternal
authority and final dependence.
Bill and Leiden (1974) note that in most Islamic
societies patrimonial) patterns of rule have been dominant
and the particular manifestation of the relationship of
patrimonial leadership has been marked. These patterns of
leadership are referred to as a relationship of emanation.
The authors believe that "the politics of emanation involve
an encounter in which one treats the other solely as an
extension of one's own personality, one's own will and
power - as an embodiment of one's self and the other accepts
this denial of his separate identity as legitimate because
of the mysterious source or nature of the overwhelming power
of the other" (1974:100-107). In patrimonial politics
recruitment is based on personal confidence.

1)2
 In the patrimonial Persian system the Shah (king - it
was the same with King Zahir of Afghanistan) is located at
the center of the political system. Here he is surrounded
by advisors, ministers, military officers, secretaries and
confidants (see Diagram No.9). The inner circle members
share personal loyalty to the leader. Although these
,

individuals may relate submissively and passively to the

leader (Shah) this is not the case in relation to their
own peers and followers. A minister who acts passively
and submissively towards a monarch on one level is a central
source of leadership (of course to a certain degree) on
another level. Therefore, within his own ministry he may
be the emanating influence and his subordinates (deputy
ministers, director general) survive by remaining submissive
and passive before him. The traditional patrimonial system
of leadership in Afghanistan and Iran (in fact in all of
the Middle East) therefore tends to consist of chains of
vertical emanation and horizontal competition that cuts
through the sociopolitical network of society.
The question of balanced conflict and the operation
of the patrimonial leadership system also seems to be very
interesting. The patrimonial leader(Zahir-Shah of
Afghanistan and Raza-Shah of Iran) has ruled on the founda-
tion of pervasive division and personal rivalry. The
expression hdivide and rule h takes on special meaning in
their leadership. According to Bill and Leiden (1974:117)
cutting through all levels in the Islamic system is a

133
 o pc.trimonial 1~8uer

• euhorrlina.tf! ll"alil!r

~ local 1~.0~r

@ A h .., 1. t ·.. i th in a poli ti cal co, "Wlity

A political co~munity

lndicte~' interaet.ion between indiTidua13 or r.roupe

THe POLITICS OF PATRIMONIAL LEADER6HIP

~.

( )
"""-'
ui a.r ra;; ~' 9

1 J':';'
built-in rivalry that makes interpersonal, intergroup,
and interclass relations. For the leader who wants to
"divide and rule" the social system, the Middle East is a
perfect place for it with its unique social structure which
encourages personal rivalry even among siblings. Hammed
Ammar (1966:110) in a study in an Egyptian village .....found
that intense sibling rivalry is considered essential to a
child's growth. It is done in many different ways including
through the naming system. Ammar discovered that in one
Egyptian family, for example, the older brother was called
"Ahmaq" (stupid) while the younger brother was nicknamed
"Musta :d" (clever). The famous Arab proverb serves the
purpose of summarizing the question of rivalry. It says
"I against my brother, my brother and I against my cousin,
my cousin and I against the stranger."
The same pattern prevails at the national level, when
monarchs and rulers play their advisors and subordinates
off against one another. For example, factions, cliques,
ad hoc collectives and blocs of all sorts are the kinds of
group formation that count in Iran and Afghanistan. James
Bill, who is an authority on the Middle East, particularly
on Iran, in his famous article entitled "The Plasticity of
Informal Politics" in the rlliddle East Journal (Vol. 27,
1973) describes this pervasive network of personal cliques
or dawrahs (dawrah is a singular Persian word meaning cycle).
According to Bill (1973):

135
 a dawrah 4 is an informal group of
individu~ls who always meet periodically,
usually rotating the meeting place among
the membership. The basic organizing
principle about which individuals cluster
in particular dawrahs may be professional,
familial, religious, recreational,
intellectual, political or economic.
Dawrah membership helps to build and re-
inforce personal ties. These ties com-
prise the backing of the social and
political fabric of Iran fand AfghanistaQ7'
(Bill, 1973:132).
The dawrah system in Iran and Afghanistan and other
Middle Eastern countries, is an overlapping system. In
each one, individuals are in contact with different cliques
of individuals. Communication flows thus from one dawrah
to another with information constantly passing through the
society by the members.
As was mentioned before, rivalry and conflict mark
all levels and systems in Afghan and Iranian societies.
Evidence shows that there are conflicts in the Royal Family
as well as between villagers, tribesmen, servants and
merchants. This tension has been system-preserving as it
acts as an integrating force. The reason for this unusual
function of conflicts has been a shifting and fluctuating
balance .that tilts back and forth making the weaker stronger
and the stronger weaker. Those individuals who are at a
disadvantage view their position as temporary and con-
stantly maneuver to shift the balance in their favor.
Afghan and Iranians distrust the possession of power.
Bill (1973) gives us a historical example, "Once Dr.
Mussadiq grasped the power, he slowly lost the confidence

136
and backing of the people. This analysis keenly recognizes
the fact that the more powerful x becomes, the more power-
ful and numerous become the forces that oppose x" (Bill
1973:143-144). The balance of tension must be maintained.
Historical evidence from Afghanistan also support this
theory. When King Amannulah seized power, he quickly lost
popularity among the people which resulted in his
abdication and exile. Prime Minister Maiwandwal of Afghan-
istan is another example. Dupree has said that:
A distinguished diplomat (ambassador to
Washington and Karachi), administrator
(Minister of Information and Culture in
Dr. M. Yusuf's first cabinet; Prime
Minister for two years), and intellectual
(he had written a masterful analysis of
Afghanistan's ills in Musawat, and proposed
a.socialist program to remedy them) ...•
ihe] also in 1969 had stood for the Wolosi
Jirgah (Lower House), and had been
defeated because of the open involvement
of the government at the Pools. . • . He
had been virtually forced to resign as
prime minister (1976:8).
While it is debatable whether Mussadiq posed a threat
to this balance. it is less a distrust of the possession of
power than a recognition of the necessity to react to its
concentration. Personal survival and system preservation
have long been based upon this dynamically delicate
balance of tension (Bill 1973:143-144),
The shifting and fluctuating of power and position
results in the insecurity of the power holder. Dr. Nasir,
a prominent psychologist who analyzed this tendency in
Iran notes from his study. liMy various occupations have

137
been all bound together like the links of a chain. For
the sake of succeeding in one and to eliminate the
obstacles to my progress, I was compelled to obtain another
position. Again, in order to protect that I.accepted a
third job" (1965:4J in Bill, 197J:148). This tendency
toward insecurity tends to be one of the reasons whjch
force the Iranians or the Afghans to join several dawrahs.
To increase family ties, it contributes to the system
maintenance in many ways. It reduces the degree of tension
between the individuals who are members of the same dawrah.
It also helps one to avoid losing all of his position and
power. It can be concluded that the characteristics of
tension, personalism, informality and insecurity which
have marked power relationships in Afghanistan and Iran are
all interrelated and reinforce and maintain the system of
patrimonialism.
To summarize, in this chapter I discussed the politi-
cal organization and political blocs among the people of
Almara. In the light of data from the village the principle
of segmentary opposition and its function among the people
were described. I also indicated that Barth's factionalism
theory does not hold among the Pashtuns of Afghanistan.
Further, based upon my observations I defined feuding as a
state of recurring hostilities between families or groups
within or between political communities motivated by a
desire to avenge an offense - whether insult, injury,
deprivation or death. I indicated that feuding by my own

1J8
definition is present among the Pashtuns. Warfare also
occurs between political communities and tribes. The
causes of warfare could be listed as invasion of a communit~

common land or common mountain forest. Finally, I

explained the systems of patrimonial ism and dawra (cycle)
in Afghanistan and Iran which are the foundation o~

political organization from tribal politics up through

state political affairs. The following chapter discusses
the belief system of the Almarawals. An endeavor will be
made to deal with the basic principles of Islam. Moreover,
the concept of sharia, its development and Islamic criminal
law, will be described.

139
 FOOTNOTES FOR CHAPTER V

1 Barth, being the acknowledged expert on the Swati

Pashtuns, believes that:
•.• The principles of descent and equivalence
of siblings are clearly embodied in Lihe '
Pashtuns kinship syste~. But the manner
in which they are utilized in political
contexts is only superficially reminiscent
of African lineage organizations. Charters
of unilineal descent define territorial
units and administrative councils. But
intertwined with this basic frame is a
system of political alliances, through which
individuals by their own choice align them-
selves in a political dual division. The
groups which for most political purposes act
together as corporate units are the regional
branches of these two factions or blocs.
Thus the corporate groups in the political
system are formed by the strategic choices
on the part of participants, and do not emerge
by virtue of a mechanical solidarity deriving
from likeness. Such a political system may be
analyzed in terms of the bases on which the
strategic choices are made •.• (Barth 1959b:
6-7).
In this manner Barth maintains that the system of
lineage prevalent among the Nuer, the Tiv, the Tallensi and
others in Africa, and Arabs in the Middle East, does not
follow the same pattern particularly when it is applied in
the domain of politics at the tribal level among the
Pashtuns.
Barth's well argued theory of factionalism among the
Swatis is based upon the reallotment of irrigated land among
the close collaterals. Barth tells us that:

140
 •.. Pakhtuns hold land as individual property,
but they do not own particular fields, and
their Llan17 tenure is subjected to a system
of periodic reallotment, known as the wesh
(division) system ... Similarly the common
estate of a descent unit is divided into an
absolute number of equal shares. A Pakhtun
through inheritance receives a specified
fraction of the tribal estate in the form
of a specified number of such shares, but no
particular plot. He is alloted fields of ~
irrigated and dry land ... corresponding to the
size of his share. But as no two pieces of
land are equal, the equivalence in value of
each share is assured only through making
this allotment temporary, and periodically
redistributing the estate between the share-
holders. Every fourth, fifth, or tenth year
each man is allotted new fields, so through
a long cycle the holders of each share
exercise rights over all fields an equal
length of time .•• (1959b:10).
According to Barth this pattern of land tenure, with
the exception of river-bank land, where continued reallot-
ment reduces the individual hazards of erosion and under-
cutting by shifting river courses, has been changing in the
area during the last generation. He believes that the
procedure for redistribution follows the segmentary charter
of the tribal genealogy within tribal units. Barth has
said that:
As these reallotments take place every ten
years, the borders of each sub-area of the
joint estate are well known to all, their
equivalence in value has been established,
and no great opposition of interests arises
between the major descent segments in the
reallotment system. The real problems arise
on the lower levels of reallotment, where
individuals have their eyes on particular
fields, and especially where deaths and trans-
fers change the distribution of shares from
one time of allotment to the next ... Tensions
and conflicts do arise during the division of

141
 their joint estate, since the fields granted
to one segment are in fact within practical
reach of members of the other segment; they
are in order of one or two miles away, and
could be worked or controlled by them. But
the most intense conflicts develop in the
last stage of allotment, when the /men of
one lineage (khel)/ are competing for the
actual, individual fields. There is no tra-
ditional subdivision of the village lands
into the! particular configuration of shares__
represented at that particular time; the men
must meet in a council of their small segment
and devise a pattern of allotment through
negotiation and compromise or force. This is
a type of issue uniquely suited to generate
intense factionalism between collaterals;
there is an overriding opposition of interests
between such groups competing for slightly
better fields. Thus at every periodic re-
allotment, the opposition of close agnatic
collaterals is dramatized and made acute, while
the opposition between segments of higher
levels is routinized and involves no particular
conflicts (1959b:11).
In order to prove his theory, Barth has observed that:
This persisting opposition between col-
laterals agnates prevents their interests
from fusing even vis-a-vis outsiders. A
Pakhtun's political activities are
directed at gaining an advantage over his
agnatic rivals, as only through their
defeat can he achieve his own aggrandize-
ment. He is not limited, as in many
lineage systems, to them as his potential
supporters - his clients constitute the
main body of his supporters. Any loss by
his collaterals means a gain for him - he
wrests control of the councils from him,
he encroaches on their field, and he
inherits their shares in land if they are
exterminated. His political strength
vis-a-vis his paternal cousins he assures
by political alliances... Alliances
!Qal~ are sought with small, distant
collateral groups against one's close col-
laterals, while the latter reciprocate by
allying themselves with the rivals of
one's allies. Such alliances involve
mutual support against the respective

142
 rivals of the partners, both in the
debates of the councils, and in the
case of warfare (1959b:11-12).
Barth constructs his factionalism theory on the basis
of the reallotment of the fields. My research shows that
Barth's theory does not hold among the people of Almara,
because the Almarawals do not leave their land and ~hey do
not have the custom of the reallotment of their fields.

2See Margaret Hasluck (1959) for a more detailed

account of the concept of blood feud in Law and Warfare
(ed.) by Paul Bohannan 1957.

3For a full discussion of Patrimonialism in the

Middle East, see James Bill and Carl Leiden, The Middle
East: Politics and Power, Boston: Allyn and Bacon, Inc.
1974.

4See James Bill (1973) for a complete review of the

dawran system in Iran.

14)
 CHAPTER VI
,
ISLAM, SHARIA AND CRIMINAL LAW

The Almara Villagers are all Muslims of the Suni sect.

In this chapter Islam will be discussed as it is practiced
among the,villagers. An endeavor will be made to describe
the basic principles of Islam. Moreover, the concept of
shari1 and its development among the Muslims will be
explained. Finally, in the light of the fundamental
principles of Islam and the concept of sharia, Islamic
laws which deal with the settlement of trouble cases will
be described.

Islam:
According to the World Muslim Congress (1962), Islam
has approximately 650 million followers. To the Muslim,
only Allah, t'the God," is divine. Muslims attribute no
divinity to Muhammad; he is simply a prophet. Like all
organized religions Islam has a codified system of ritual
(commonly called the Five Pillars of Islam) for initiation
and permanent identification. Muhammad, the Prophet,
(Shahab: 1966:1) said that:
Boni il Islamo alIa khamsa. Shahhadaten
anna la ilaha ilIa llahu, wa anna
Muhammadan rasulu-llah. Wa eqama salate.
Wa ieta azzakate. Wa hajj. Wa sawma
ramadanen.
144
Translation: Islam is founded on five principles:
(1) given witness that there is no God but Allah and
Muhammad is the messenger of Allah; (2) salat (prayer);
() zakat (almsgiving); (4)hajj (pilgrimage); and (5)
sawm (fasting).l Regarding the importance of these five
principles; .§§!!!!! (fasting) comes fourth and hajj is- the
fifth in order. Here I followed the order of the above
mentioned hadith, but many jurisprudence books put hajj
last.
A devout Almara villager after wodhoh (ritual
ablutions) prays, facing Mecca, five times each day. The
daily occassi<1Yls for prayer are gayiz (dawn), maspasheen 2
(early afternoon) till mid-afternoon, mazdiger (dusk),
masham (early evening) and makhustan) (at night). In
addition, the offering of Friday prayer is also fard
(essential duties) for each MUGlim in nearby larger mosque
in the village or in the nearby town or city. Two other
prayers such as the prayer of Id-il-Ramadan, said at the
end of the month of Ramadan (fasting), and the prayer of
Id-il-Uduha, said on the tenth of the month of Dhul Hijja
(the ninth and the twelfth month in the Muslim lunar
calendar respectively), are also wajib (essential duties)
for all Muslims in the tovm or city mosques. Al thcugh not
forbidden by Islam, women do not pray with men in the
mosque because the system of perdah 4 (veil) is still
prevalent in the area; since women are segregated and thus

145
pray at home, the mosque remains a place for men to pray.
Zakat (almsgiving) is considered a purifying act.
All Muslims should annually give a certain percentage of
his/her wealth (money, crops, animals) to the neighbors
and the poor directly. Every Muslim is required to pay
4 percent of his/her money, 10 percent of his/her '
agricultural yields and 2 1/2 percent of his/her animals
annually to the ·poor. In order to avoid humiliation and
embarrassment zakat is very often paid directly to
whomever may deserve it but not in the presence of another
individual. ?a~at has three important functions: (1) to
avoid accumulation of wealth and to see that it is dis-
tributed among all peoples; (2) to help the poor; ()) to
enrich the Bayt at-Mal (State Treasury). The custom of
zakat also partly justifies the lack of taxation for the
purpose of social welfare in Afghanistan and in certain
other Muslim nations.
The ritual fasting (rujah, Pashto) is the fourth
essential duty in Islam. It occurs for one lunar month
in the ninth month of the Muslim calendar. The fasting
individual is obliged to avoid eating, drinking, smoking
and having sexual relations from sunrise (theoretically
when white thread can be distinguished from black thread)
to sundown (when the white and black threads are indis-
tinguishable). Fasting (rojah or rozha) is a hard task to
be fulfilled by the devout especially when it falls in
summer when the days become longer and the temperature

146
rises. It creates greater hardships for the peasants who
are working in their £ields under the sun.
Pregnant and suckling mothers, travelers, soldiers in
the battle field, sick individuals, women during their
menstruation period and the ruler are exempt from the fast.
According to the Islam however, all must make up lost days
at other times of the year.
Although fasting creates great hardships for the
devout ~~ ~upports very valuable humanistic, democratic,
and beneficiary health philosophies: (1) it is a test of
self-control; (2) it creates an awareness about the poor
and the pain of their hunger; (3) it is applied as a rule
to every Muslim except for those exempt; (4) it is
healthy: people who gain weight know its ef£ects best.
All Muslims who can meet their family's needs for at
least one year and can afford the expenses of the journey
are required to perform the obligatory hajj (pilgrimage)
to the sanctuary of Allah in the city of Mecca in Saudi
Arabia. In 1970, 1,500 pilgrims (hajji, singular) made the
trip in buses, and 5,000 went by air.
The major festival during the Hajj is the ritual
slaying of sheep, goats and cows on the tenth day of Dhul
Hijah, Id al-kabir or Id al Udoha, Arabic or Loy Akter in
Pashto. Every hajji in Mecca is supposed to slaughter a
sheep or a goat alone or share a cow or an ox with six
other individuals. Muslims at home are also obligated to
make gurbani (animal sacrifice) if they are not in debt to

147
others and they have a certain amount of wealth which
could meet the family needs for at least one year. One
sheep or one goat is considered to be sufficient for
meeting one individual's requirement and a cow or an ox
could meet seven persons' religious obligations. The
slaughtered animals should be split in three equal ~arts:

one third of it going to the sacrificer's family, one third

to kin and the remaining third to the poor. This custom
is symbolic of Abraham's slaying of a sheep in place of his
son, Isaac, at the command of Allah. The festival lasts
four days. During the festival relatives and friends
visit each other's families, cook big dinners and distribute
sweets.
There are important social, economic, political, and
religious philosophies behind this festival and it serves
several important functions: (1) Hujjaj (pilgrims) from
all Islamic nations get together on one spot in the sacred
city of Mecca. The ideas diffuse from one country to
another and the ties of Muslim brotherhood intensify. (2)
The pilgrim learns many things from his/her travel by
visiting different people from allover the world and
seeing many cities and countries. (3) Muslims at home are
supposed to go to their kin and friends' homes and visit
them. Every believer is obligated to shake hands and greet,
even his enemy, during the festival days. Consequently,
many conflicts and tensions accumulated through the year
are resolved in this manner. (4) It avoids the

148
accumulation of wealth. A hajji not only pays for his
travel, he is supposed to buy many gifts for his family,
relatives, and friends; upon his arrival home he distributes
the gifts. Moreover, at his arrival at home all his
relatives and friends come to his house for greeting and
he is expected to serve good food to his guests. (~)

Many Muslims believe that one who fulfills the Hajj

requirements, is forgiven all his sins by Allah and
becomes an innocent individual. By making a pilgrimage a
hajji attains highe~ religious, social and consequently,
higher political status, in the community. He becomes a
respected person. Many people indicate their respect for
a hajji by kissing his hands while greeting him or
standing before him when he enters the room or masque. For
the most part, his ideas, attitudes and decisions are
considered respected and accepted. (6) At the very
beginning of Islam Saudi Arabia was a poor country and the
Arabs were not aware of their rich oil resources. The
fulfillment of the hajj requirements made it mandatory for
rich Muslims to visit Mecca, and spend some money during
their stay. Therefore, pilgrimage became an important
source of income for the poor Arabs in Saudi Arabia. As a
result these activities helped to create a more equitable
distribut~~~ of wealth. But it would be naive to claim
that an egalitria~ situation resulted. The discovery of
oil and the tremendous wealth coming to the Muslim nations

149
as a result has only served to exacerbate the conditions
the hajj was intended to alleviate.

Islamic Jurisprudence, Its Development

and Foundations
Like all other aspects of cultural and noncultural
entities the concept of figh or Islamic jurisprudence also
evolved over a long period of time. Before the emergence
of Islam in Saudi Arabia and other Arabic and non-Arabic
countries, customs (Arabic: rusoom) norms, ~rf) and
habits (adat), prevailed on the basis of which individuals
and public affairs were controlled and through which
conflicts and confrontations among individuals and groups
were resolved. With the emergence of Islam not all these
customs and habits were discarded.
There were some customs, norms and habits which were
important and necessary for the existence of the society.
Therefore, Islam kept the beneficial ones and ordered the
elimination of those which were inefficient and harmful
(Musa 1973:2). For instance, under this rule truth,
honesty, and loyalty were encouraged, and gossip and
consumption of intoxicating drinks were forbidden.
According to Atooh (1971:2) laws and rules followed
by societies and nations are of two kinds: secular laws
and divine laws. Secular law involves those rules and
regulations which are made by governments and states in
order to bring about regularity and order in the affairs
of the society. The real basis of these laws rest upon

150
the usages, customs, and norms of the people, opinions and
experiences of the learned men and scholars, plus the
historical background of those societies. A part of these
laws are the residues of the divine legal systems, which,
in the long run, people had gotten accustomed to. Without
questioning the origin of these laws, they had beco~e an
inseparable part of their lives.
The second type of laws are characterized as divine
laws. These laws comprise a system of "oughts," "ought-
nots," guidelines, exhortations and rules that are laid
down by God and are sent to societies and nations through
a messenger who is one of the people. Based upon the
themes of these divine laws the Prophet invites the people
to abide by God's rules promising the fruits of their
deeds: paradise. The Prophet also discourages his
followers from unlawful acts which lead to Hell. According
to Atooh (1971:2) the divine law in Islam is the Islamic
Sharia.

Sharia:
,
.{ ,. .
Sharla or Shar lS an Arablc word
(
also very commonly
used in Pashto and Persian) which means literally the
right "path" or "road" and hence the law of Islam leading
Muslims to heaven (Levy 1971:150), According to Serat
(1971:3) all imperatives and rules determined by God and
revealed to Mohammed and taught to Muslims through the
Quran or Sunna are called sharii. To many Muslim scholars,

151
the shari~ is not simply a body of law, but also includes
faith, ethics and action. The sharii consists of three
sets of imperatives and rules:
1. Tenet imperatives: Those rules related to the
nature and attributes of the God: belief in God, his
messengers (Prophets), angels, the divine books (TQrah,
Psalms, Bible and Quran) and Resurrection.
2. Ethical imperatives: Maxims and virtues by which
human conduct should be characterized such as truth,
honesty, trusteeship, loyalty to promise, sacrifice,
generosity, bravery, avoidence of meanness, rascality,
mischievousness' such as telling lies, breaking promises,
timidity, gossip and other forms of conduct harmful to
the ethics of individuals and society.
3. Active imperatives: Imperatives related to the
believers' conduct regarding, for example, worship, trading,
crime, individual affairs and international relationships
among Muslim nations during peace and war time, and other
rules treated by figh (jurisprudence).
In this way shari~ is not only a body of law, but
also includes belief and action. As Yusuf (1976:33) points
out "It /Sharia'/ is a total way of life, a moral code and
a body of law all lumped together. It concerns itself
with every Rspect bf the life of the believer •.. ," Fazlur
Rahman (1966:1)6-37) observes that "The shari! itself is
defined as comprising both the acts of the heart as well

152
as overt acts. It is indeed the assembly of Divine impera-
tives to man, imperatives which are frankly admitted to be
primarily of a moral character. "The sharict is thus not
an actual formal code of particular and specific enactments
but is conterminous with the • good I."
Based upon what has been said so far about shari~ and
figh (jurisprudence), we have learned that the domain of
sharii is wider than that of fiqh. However, scholars in many
Islamic nations traditionally refer to sharii as fiqh.
Logically this type of useage is considered correct and is
commonly used. Indeed it is a reference to a whole by
one of its parts.

Figh or Islamic Jurisprudence:

According to Subki (1283) jurisprudence is defined as
"knowledge of the practical rules of rel igion" (in Levy
1971:150). More fully, it refers to knowledge of the rules
or imperatives of God which concern the actions of persons
who are themselves bound to obey the law respecting what
is required, forbidden, disapproved, or permitted.
The seven types of imperatives of fiqh are:
1. fard (obligatory): imperatives which came to
Muslims from Allah through the Quran and Sunna (Muhammed's
tradition) and must be adhered to. Praying five times a
day is an example.
2. waiib (necessary): rules which came to Muslims
through the Quran or Sunna which should be fulfilled such

153
as sacrifice of animals by the individuals who can afford
it during the Id-il-Uduha and prayer of the Id-il-Ramadan
and Id-il-Uduha. Fard occurs more frequently than Wajib.
Fard is usually obligatory to every believer but Wajib in
many occasions is related to the economic status of the
individual.
3. Sunna (recommended): rules recommended to be
fulfilled. Failure to accomplish them is considered sin.
Praying together with other villagers in the mosque while
the imam conducts the prayer and the others follow, is an
example.
4. Mustaheb (optional): accomplishment of this rule
brings credit to the actor and the act is desired. Non-
accomplishment is not considered to be a sin. The use of
tasbeh (rosary) very commonly used in the Middle East, for
the purpose of prayer, is an example.
5. Mubah (permitted): an act which is permitted: it
is an indifferent act such as sleeping, eating and walking.
6. Makruh (disapproved): acts which are disapproved
of and considered reprehensible: such as eating of the
horse meat because of the horse's importance in war.
7. Haram (forbidden): those acts which are prohibited
by shari~ (Islamic law) such as theft and adultery.
Sorn o ~uthoriiies such as Ibn Khaldun (Levy 1971:150)
and Khaddury and Liebesny (1955:108) do not differentiate
between fard and wajib and also between sunna and mustaheb
and consequently provide us with a list of five items.

154
 ·
The knowledge of sharia and fiQh is acquired from
Quran, the Sunna and such arguments as the legists (those
skilled in law) may adduce for the necessary comprehension
of the laws contained in them. It is the body of rules
derived by these legal arguments that is called fiqh.

The Sources of Figh:

According to the medieval Muslim theory of jurisprudence,
the structure of Islamic law is built on four foundations,
called "the roots of law." Thes e are the Quran, 5 the Sunna
(the verbal and practical tradition of the Prophet), ijm~
(consensus) and Qiyas (analogical reasoning) (Fazlur Rahman
1966:75: and Khadduri and Liebesny 1965:97). Levy points
out that the Islamic legal system is believed to have
..
deve1 oped from f1ve ma1n sources: the Quran, th e S unna, ~
.,

(consensus), qiyas (analogical reasoning) and ray (judgement

and opinion). Musa (1973:17) explains that whatever
endeavors are made by the fogaha 6 (jurists) in this connection
they are nothing more than an elaboration of understanding
of the two primary sources and derivations of rules. However,
he maintains that the structure of Islamic law is laid on
six fundamental sources which I discuss below.

Quran:
The QUran is the direct injunction and kalam aI-Allah
(Words of God). It is the most consummate and final
revelation of God to man. The Quran itself contains the
objectivity and the verbal character of the Revelation

155
brought down to Mohammed by Gabriel, the Trusted Spirit
(Fazlur Rahman, 1966:26). According to the predominant
view in Islam the book was regarded by the Prophet as
containing a series of revelations made to him at irregular
intervals as necessity demanded and as dictated from an
original code, Umm al-Kitab (the Mother of the book(s),
which is preserved in Heaven. ) (Levy 1971:150)
The Book contains a series of 114 suras, chapters,
very unequal in length. It was verbally revealed and
delivered to Mohammed at uneven intervals and under specific
circumstances in Mecca and" Medina. According to Fazlur Rahman
(1966:25), "the early Meccan SUras are among the shortest;
as time goes on, they become longer. The Ayat (verses)
in the early Suras are charged with an extraordinarily deep
and powerful psychological moment; they have the character
of brief but violent volcanic eruptions."
Levy (1971:53) tells us that "the early Suras--those
delivered at Mecca--and also the earlier Medina chapters,
are filled with impassioned harangues to encourage belief,
with fiery denunciations of enemies, and with vivid
descriptions of Hell, Heaven and the judgement of the Last
Day (Yawm al Qayama) to point out Mohammed's remarks."
Most of the Ayat (verses) revealed to Mohammed in
Mecca did not include fighi (jurisprudencial) rules but very
often were heavily loaded with rules and discussions of
beliefs and tenet. The Meccese verses were invitations to
Islam, make the Muslims to promote belief in God and fulfill

156
what was obligatory and recommended and avoid what was
reprehensible and forbidden by Islam. Therefore, the
verses are short, concise, meaningful and charged with
powerfulness and psychological elements such as fear and
promises.
Fazlur Rahman (1966:25) and Musa (1973:3) both believe
that the Medinese verses became longer, more fluent and
easy stylistically. This is certainly not to say that
either the voice had been stilled or even that its intensive
quality had changed. I believe it was a rational and
logical policy. As Muhammad emigrated 7 from Mecca to
Medina because of pressure from his enemies he and his
companions established the Islamic nascent community-state
in the city of Medina. As a result of it the legal content
increases for the detailed organization and direction of the
new community-state. Moreover, there was an obvious need
for laws and regulations in order to control individual as
well as national relations. This change did not happen at
once. It was a gradual process so that the new believers
could adjust to their new tenet gradually and discard their
previous traditions and beliefs.

Sunna:
All these rules came to Muhammad through revelation
in short and abstract statements. Therefore, there was
a need for the interpretation of the Kalam aI-Allah (words
of God) and Sunna met the need.

157
 Sunna includes Muhammad's gawli (spoken), fJli
(actional), taqriri (agreemental) behaviors. According to
Fazlur Rahman (1966:45) It ••• Sunna literally means the
'trodden path and /the wor~l was used by the pre-Islamic
Arabs to denote the model behavior established by the
forefathers of their tribe. The concept in this context
,
has, therefore, two constituents, (a) an (alleged)
historical fact of conduct and (b) its normativeness for
the succeeding generations. It
In the QUran the word
is also applied in the same sense. The Sunna which embodies
the personal actions, sayings, agreements with others and
facts of life of the Prophet are contained in hadiths
(tradition from the Prophet). The hadith in essence, is the
report of the Prophet's Sunna or courses of conduct, doings
and sayings (Subki 1850:11:83).
The words, action, and sayings do not need illustration.
The word tagriri refers to a situation in which in the
presence of Muhammad an individual acted or said something
and the Prophet kept quiet (indicating agreement), or
the Prophet considered it beneficial, or in which he was
told about a deed done by someone and did not reject it.
The difference bet#een the hadith and the Sunna is that
whereas the former is a mere report and something
theoretical the latter is a report with a normative quality
and thus a practical principle for the Muslim.
Each hadith consists first, of the isnad (the chain
of authorities who have transmitted the report) and second,

158
the matn (the text or substance of the report). A
typical chain of transmitters runs like this: A (the
last narrator) says he heard it from B on the authority
of C who said this on the authority of D that the Prophet
of God said . . . etc. (Dupree 1973:100; and Fazlur Rahman
1966:57-63) .
The most reliable ahadith (plural of hadith) comes
from the ashab companions of Muhammad. A total of 144,000
ashab are estimated by Hughes (Hughes 1885:29). Those
hadiths recorded immediately after the rahlat (death) of
Muhammad are the most reliable ones particularly if they
are written by the first grade companions. A great
number of Muslims recognize a certain number of individuals
as having been in a position to report the Sunna of the
messenger Muhammad. The most famous of these persons are
Abdullah ibn Abas, the Prophet's uncle and one of his
"companions," ibn Umer (Son of the second Caliph, Umer),
Aisha, Muhammed's widow and daughter of Abu Bakr (Muhammad's
successor), and Abu Hurayra, a friend of the Prophet's.
Islam was divided into two major sects shortly after
the death of the Prophet Muhammad. The chief reason for
this split was political rather than religious. As
Dupree (1973:101) has described this development:
Islam . . . is divided into two major
sects, born primarily because of
disputes over political succession,
rather than religious differences.
The problem of succession to leader-
ship of the Muslim community arose after
the death of Prophet Muhammad in 632.

159
 One group thought the leader
(Khalifa or Caliph) should be
elected from the Quraish tribe of
the Prophet; another thought Ali
should succeed his father-in-law
(Mohammad left no male heirs) . . .
Very roughly speaking the Muslims who accept the
Surma as transmitted by those mentioned above are called
Sunni (Sunnites) while those who do not are the shi1
(Shiites). According to the Shiites the community of
Muslims has no power to elect its head, who is an imam
always divinely appointed from descendents of Muhammad's
immediate kin. They believed Ali was alone entitled to
succeed him; and the three Chaliphs as well as all other
&
Chaliphs were usurpers and impostors. Shiis also believe
that since ibn Abbas, Aisha, Ibu Haryra and others con-
sistently refused to report those hadiths which would
prove Ali to have been appointed to the leadership of
Islam by the Prophet himself, the Shiites rejected the
whole body of hadiths originating from these sources. They
accepted only the ahadith for which Ali himself is the
authority and he reported them. Therefore, the Sunnite
hadith is not one of the roots of fiqh recognized by the
Shiites.
Where the Quran was not clear on a particular
question resort was very often made to the Sunna.
Consequently, the Sunna has gradually acquired an
authority only slightly less than that of the Quran and
in this way has become the second major source of Islamic law.

160
Qiyas (Analogical Reasoning):

Within twenty years after the rahlut or "death" of

the Prophet, a great belt of territory from the Indus to
the Atlantic Ocean had been conquered and converted to
Islam by the Arabs. In everyone of the subdued terri-
tories, the conquerors met with a civilization vast~y

different to their own, about which their sacred books,

the Quran, and the hadith said little or nothing. New
economic, social, legal and political problems which
needed genuine answers arose. The Muslim rulers were
forced to adopt regional traditions or else apply their
own reason and common sense as a way out of their
difficulties. The practice of judgement or opinion is
known in Arabitas ray and has become a technical term in
figh (Islamic law). According to the free use of ray,
opinions were checked by the introduction of a rule that
such ray must be controlled by references to the Quran.
If the latter should contain no precedent on a particular
point, it contained a precedent on a similar point from
which the correct inferences could be drawn. Thus
evolved the principle of giyas, "to measure" and hence
"analogy," the third root of the Islamic jurisprudence.
Fazlur Rahman (1966:79) has said that:
The term qiyas, according to the Muslim
jurists, means analogical reasoning,
i.e. concluding from a given principle
embodied in a precedent that a new case
falls under this principle or is similar
to this precedent on the strength of a

161
 common essential feature called the reason
(i'ila). . .
The following example throws more light on the
principle of giyas (analogy). Quran and Sunna both for-
bade drinking of all kinds of intoxicating beverages.
Taking of certain amounts of alcohol results in intoxi-
cation, therefore, its drinking is haram (forbidderi1 by
Islamic jurists.

Ijmi (Consensus):
Ijm~ literally means gathering and consensus (Haim
1963:19). Islamic jurists define the term as the consensus
of all contemporary mujtahadin (pious religious jurists)
over a particular point of law. Some of the Islamic
jurists are of the opinion that the gathering of all Muslim
fogaha (jurists) was and is a very difficult task.
Because, first, they are scattered allover the Islamic
world and therefore, their recognition is not an easy job.
Second, bringing all these scholars and jurists together
in one spot and to ascertain their opinions is very
difficult work particularly in the past when the systems
of transportation and communication were not as practical
as they are today.
However, too much reliance on legal and dogmatic
opinion on details resulted, to a great degree, in a
difference between legal scholars themselves and between
scholars and their disciples. For instance, Abu Hanifa's8

disciple, Abu Yusuf, refused to follow him unquestioningly

162
on the path of ray (opinion), and qiyas (analogy)
(Fazlur Rahman, 1966:80-84; Levy, 1971:166-69: and
Yusuf, 1976:35). Therefore, the principle known as ijm1,
which defines the force and validity of any law obtained
by giyas, was adopted as the fourth principal root of
Islamic law, after the Quran, Sunna and qiyas. ImRerative
text of Quran, and hadith and terse or succinct of ijm~
is called nass (text). A nass is different from the
principle of giyas. For example, it is said that usage
can overcome on qiyas (analogy) but it cannot dominate
ijml (consensus). Apparently the principle of qayas
(analogy) is older than ijmi (concensus) in its history
but its validity is less.

Istihsan (Regarding as Better):

According to Levy (1971:168) one of the dangers of
giyas (analogy) is that it encouraged casuistry.
Abu Yusuf, an immediate disciple of Abu Hanifa, for example,
was notorious for the way in which he twisted the laws
to suit expediericy, until even his own co-religionists
viewed his decision and even his reports of hadith with
distrust. He was too greatly addicted to the use of ~

(opinion)~and his new applications of law. For instance,

Abu Yusuf applied the principle of Istihsan (regarding as
better) developed by his teacher, Abu Hanifa. The
principle of Istihsan has corne to refer to the rule on the
basis of which whatever is considered admirable by the

163
wisdom of the mufti 9 (judge or jurist) reasonable and
acceptable by Islam. The verdict in a specific case
might be a new one and a deviation from the general rule.
There are many examples of the application of this rule
in the figh (jurisprudence) books. For instance, based
upon the principle of qiyas (analogy) purchase of an
.... item
is not permitted in its absence. Because, first, whether
or not the item could be available in the future is a
question of probability. Second, there is a fear of
conflict over the quality of the item whenever it becomes
available. Based upon the principle of Istihsan (regarding
as better) Islamic shari' permits the purchase of a good
even if it is not present. The follo~'lers of imam
Abu Hanifa apply this principle more often than the
followers of any other of the three orthodox schools
of Islamic law.

Massaleh Mursalah (Worthwhile):

Massaleh Mursalah (worthwhile) is the sixth principal
root of the Islamic jurisprudence. It is defined as
the point of law y..hjch is considered by the jurists to
be "worthwhile" and "beneficial" for the affairs of the
societies, and its validity or invalidity is not proven
through a nass (Quran, hadith or ijmc:t). r.1assaleh r.lursalah
(beneficial) should not contradict itself with any of
the aims and rules of the sharii and it should solve a
problem in the society.

164
 In the view of the prominent jurists Islamic
shari~ should not limit itself only with what nass rules,
because people and their culture evolve and change.
Therefore, Islamic shari~ has to be adjusted with new
situations and new developments, otherwise it will not be
able to cope with new problems and the society may ~ose.

If we examine the orders and fatwas of the Chalifs,

Companions and Islamic jurists, we find much evidence of
the application of this principle. The following are a
few examples:
1. Neither in the Quran nor in hadith is there a
nass to indicate that the Quran editing which was in the
mind of Ashab (companions), or written on sheets of
papers, on stones and on bones, was wajib (required) or
haram (forbidden). After the rahlet (death) of Muhammad,
Abu Buker became the first Chalifa, although at the very
beginning he refused to accept the responsibility by
saying that he could not fulfill the job which was never
done by Mohammad. Because of the fact that Omer,lO
the second Chalifa, met with him several times and
insisted on the importance of this issue. He finally
accepted the task of gathering and editing the Quran.
2. The nass (text) from the Quran enforces cutting
off of the thief's hand. During Orner's Khalafat (reign)
there was a severe drought in Arabia and because of the
hunger he stopped this had (specified punishment for a crime).

165
 J. The jurists allowed the justice rulers to
collect some tax from the rich so that the ammunition
could be bought and the military systems could be improved.
4. Although Islam rules the private business
industry through halal (lawful) activity and means for
the sake of the well-being of the majority of the p'~ople,

the jurists delivered the fatwa (verdict) of land reform

in some of the Islamic countries such as in Egypt.

Formation of the Legal Schools:

The death of the Prophet Muhammad and his four
succeeding Caliphs on the one hand and the freedom of
legal thought in the 1st (7th) and 2nd (8th) Centuries
on the other led to the use of a great many of legal
op~nions in different centers most notably Iraq, the
Hijaz, Syria and Egypt. Each of these schools was led
by an eminent legal personality. Variation in the
interpretation of the Quran in the light of local
customary law, and the differences in the application of
giyas (analogy) and ~ (opinion) resulted in the
differences in these bodies of legal thought.
With the development of the concept of ijmi
(concensus) these centers merged into one another.
Ideological debates and accumUlations of legal opinions
gradually crystallized into madhahab (Arabic, pl. of
madhhab) or rites in the 2nd (8th) and Jrd (9th)
Centuries. These madhahab (rites) came closer to one

166
another not only on the principles but even on major
details (Fazlur Rahman, 1966:92).
There are four major schools which are still
inexistence, all named after their founders:
Abu Hanifa, Malik ibn Anas, Muhammad ibn Idris al
Shafii and Ahmad ibn Hambal. These rites cover the_Sunni
world and to one or another of them every Sunni belongs.
In Iraq, the rite centered around Abu Hanifa
(d. 150) (767) and was called madhhab al-Hanafi (Hanaf
School). The school is the earliest of all four major
madhhabs. lmam Abu Hanifa's disciples, Abu Yusuf (d. 188)
(971) and Muhammad al-Shaybani (d. 189) (805) in
particular, elaborated on and systematized the school of
thought. This legal practice was favored by the Abbasid's
empire whose capital was Baghdad. The adherents of the
Hanafi School live predominantly in Afghanistan, India,
Iran,ll Pakistan and Turkey. Numerically, about half of
the sunnite sect of the Muslim population adhere to the
Hanafi rite. The major characteristic of the school was
the exercise of ray (free opinion).
Malik ibn Anas founded the Maliki madhhab (d. 179)
(795) which originated in Medina. He was a native of
the city. The school closely follows the Hanafi rite in
terms of historical sequence. Malikite madhab overcame
the Syrian school of al-Awazi (d. 157) (779), whose
reliance on the "living tradition" was greater than on
legal hadith in contrast to Sufyan al-Thawri. Imam Malik

167
placed his reliance on the "living tradition" of Medina
but was equally anxious to vindicate this tradition
through hadith. He was a systematic ~igih (jurist).
Malik collected a body of legal traditions and, testing
them in the light of the living practice of Medina,
constructed a system of juridical opinions into a _~

famous work called al-Muwatta--"The Levelled Path"

(Fazlur Rahman, 1966:92-95). Malikite madhhab (school),
originally established in Medina, spread to cover Upper
Egypt, North Africa, former Muslim Spain, West Africa,
Sudan and various areas along the Arabian shore of the
Persian Gulf.
The third major existent madhhab (rite) is that of
the Shafii School named after Muhammad ibn Idris al-Shafii
(d. 204) (819). He was a man of Arab birth, who started
his studies with Imam Malik at Medina and followed them
by learning the methods of Abu Hanifa from his disciple
al-Shaybani. Examination of their methods led him to
be dissatisfied with both; with Imam Abu Hanifa's for
what he considered the excessive scope for personal
prejudices, which "opinion" allowed to the arbitrary
decisions of individual jurist, and with Imam Malik for
his adherence to tradition. He, therefore, decided to
establish a new madhhab. In his elaboration he
included custom and long-established useage among the
major sources of the Islamic law. Moreover, al-Shafii
expanded the idea of ijma to include the immense body of

168
 opinions and decisions which those competent to do so
in Islam had formulated and agreed upon. To sum them up,
there Were three roots of jurisprudence of Shafiis,
the Quran, the Sunna and the ijmi (consensus). In
Imam Shafii's view they were not sUfficient for all the
requirements of the law, and he established a fourth root
in qiyas (analogy), which he used when the other sources
failed. He frowned upon the unrestricted liberty of ray
(free opinion) and its offshoot Istihsan (regarding as
better) (Levy 1971:177-179). The followers of the Shafite
rite today are found chiefly in Cairo, Lower Egypt, and
parts of Yemen and Aden.
A famous doctor and arch-traditionalist, Ahmad ibn
Hambal (d. 241) (1855), a pupil of Imam Shafii, founded
a new school called madhhab al-Hanbali (hambalite Rite).
He carried the logic of al-Shafii's insistence on the
hadith in law to extremes and eventually became one of
the bitterest critics of his ustaz (teacher), Imam al-Shafii,
and his madhhab (rite). Ibn Hanbal accepted the Rationalist
interpretation of the Quran and hadith (tradition) and
he with those of like mind refused to recognize the
"unlawful" bide! (innovation) of the ijmi (consensus).
Ibn Hanbal was not primarily concerned with juris-
prudence and its relation to sources of hadith. He was
mainly interested in juridical aspects of jurisprudence.
His major work, The Musnad, collected a body of traditions.
Therefore, he is considered a traditionalist. On the

169
whole, the Hambali school is the most reactionary of the
three schools described thus far. At present the
Hanbalite rite is predominant mainly in Saudi Arabia, and
in parts of Muslim population of India and Pakistan.
The above four madhhabs (schools) appear to have
evolved as a result of social, economic and political
changes among the Muslim nations. When Islam expanded,
many different problems arose. In order to accommodate

challenges some basic changes within the Islamic legal

system were necessary. As Falzur Rahman (1966:99)
has said, "a detailed history of their ,(madhaheb or ri tesJ
mutual interaction still needs to be written. But there
is not only no fundamental difference of jurisprudence
between them, even the difference in detail has been
largely tUrned into a remarkable unity thanks to the
limited ijtihad (systematic original thinking) that
continued to be allowed and exercised by the scholars"
(Falzur Rahman, 1966:94). All four rites consider the
Quran and the Sunna as the primary sources of Islamic law.
Some of the differences between the "rite" have been
exemplified over the various points of law as laid down
or stressed in the original roots of Islamic juris-
prudence. For instance, the Hanafite and Malikite schools
acknowledge the validity of local customs within the
legal system. Imam Shafit, however, totally refused
this view. The differences of opinion among the founders
of the rites involve the gamut of laws of inheritance,

170
marriage, homicide, ritual of fasting, ritual ablution,
slavery, food tabu (haram) and so on (Levy, 1971:
176-186; Fazlur Rahman, 1966:92-95; and Khaddri and
Liebesny, 1952:97-140).

Criminal Law:
In Islamic law the term jurm and janavat are very
often used synonymously and to mean "crime" or "felony."
In Islamic shari~ crimes are those actions, the fulfill-
ment of which are forbidden or those acts whose discharge
is prohibited by Allah and are liable to hudud (penalties
specified by the Sharii) or tazirat (discretionary
penalties) (Awdah, 1969:56). According to the Egyptian
Criminal Law, the concept of crime is different from
what is considered a crime by the Islamic sharia.
Egyptian Criminal Law considers that type of action as a
crime whose penalty is execution, temporary or lifetime
imprisonment with servitude or stoning. If the penalty
for an action is more than one week imprisonment or a
fine of 100 Egyptian Pounds ($2 =1 Egyptian Pound) the
act is called jonha (torts). The act for which there is
a penalty less than that is named mukhalafat (oppositions).
Islamic sharia considers all of them as crimes.
To take the severity of the penalty into account
the Islamic sharii divided the punishment for the jurms
(crimes) into three categories:

171
A. Hudud: divine rights and rules specifying penalties
for certain crimes determined by a nasus (texts).
Neither the qadi (judge) nor the ruler has the right to
increase or decrease the amount of penalty nor can the
offender be forgiven by an individual or society. In
Islamic law these penalties are thought to be hggg .ulla
(divine right) the establishment of which is believed to
be beneficial for the common salah (good). Their aim is
to bring about peace in the society and protect it from
corruption, deterioration, and defect. The number of
hudud (Arabic, pl. of hud) is seven:
1. Hudul Zana: specified penalty for adultery.
The Quran says:
"And c orne not near to adultery. It is
an a bomina tion and evil way" (Pickthall,
1957:284). Also Quran reads, "Scourge
adulterer and adulteress with one hundred
stripes"12 (Quran, Surat Nur, Aya 2).
Prophet Muhammad has said that "in case of adultery (g!1§:J
for a non-married (ghair,muhsan) man and woman, there
are 100 jeld (stripes) and one year exile" (in Awdah,
1969:470). The exile should be within the Islamic
world. Another hadith also reads that "the penalty for
an adulterer and an adulteress is 100 strokes and
stoning t 0 death." The interpreters of the law divide
offenders into two classes: muhsan (married) and ghairt
muhsan (non-married). The penalty for the former category
is 100 strokes and one year in exile. The penalty for
the latter category is stoning to death.

172
 2. Hudul Qazaf (accusation): the text of Quran
reads "those who cast imputations on [Of adultery on the
chaste, i.e., free, of full age and sound ~ind, pro-
fessinglslam and abstaining from fornication7 on
women and then do not bring four witnesses scourge them
with 80 strokes and never accept their witness, they are
lewd people (Suratu Nur, aya 4). According to this aya
(verse), gazaf (accusation) is being considered a crime,
the primary penalty 80 strokes and the secondary penalty
for it is deprivation from acceptance of his witness.
3. Hudul Surb (penalty for drinking intoxicating
beverages: the text of the Quran reads: "drinking
alcoholic beverages is an evil act I therefore, avoid it"
(Quran, Suratu Maa, aya 9). A hadith also reads:
"drinking any of the intoxicating beverages is haram
(prohibited)" (Awdah, 1969:97). The penalty for consum-
ing intoxicating drinks is not precisely determined by a
nass (verse of Quran or hadith). During the reign of Orner,
the second Caliph, based upon the Companion ijma'
(consensus) and the principle of ~ (analogy) to the
hud (penalty) gazaf the rule was established that the
drinker has to be penalized by scourging him (her)
with 80 ,jelds (strokes). The basis of this gayas, I
believe is laid on the assumption that when an individual
becomes drunk he may say obscene things and falsely
accuse people of improper acts.

173
 4. Hudul Serqa (specific penalty for theft):
the Quran contains provision for the punishment of theft--
secretly taking the possessions of another. The code
specifies harsh punishments for theft, usually mutilations
such as amputation of a hand for the first crime and
a foot for the second. The text reads, "amputate man
and woman thieves' hands" (Quran, Surat ah Maeda, aya 38).
It is believed that the hand must be cut from the wrist
and the alternate foot from the ankle.
5. Hudul Haraba (penalty for highway robbery):
Allah tells us that "without any doubt the penalty for
those individuals who, accuse the lovers and believers
of Allah and Prophet Muhammad, and create corruptions
on the earth, is death, hanging and amputation of right
hand and left foot and exile to a remote place"
(Quran Suratu Maada, aya 33). Highway r.obbery is
considered unlawful in Islam and the penalty for it is
death, hanging, amputation or exile.
6. Huda Rada (penalty for apostasy): the text
read: "those individuals among you who leave their
faith L1s1a~ and they die while they are still
unfaithful to Islam, their deeds are worthless in the
world and in the Future Life" (Quran Sura Baqer §:.Y.'! 217).
Hadith reads: "mu!"dering a Muslim is unlawful except for
(a) the adulterous matron (non-virgin), (b) murderer,
and (c) those who have withdrawn from their faith and
have been separated from the Muslim community. Another

174
hadith also reads: "kill the individual who leaves his
faith" (Atooh, 1969:98).
7. Hudu Baghya (specified penalty for revolt):
revolt is last of the seven crimes. The penalty for
hudu baghya has been specified by aya (verse of Quran)
and the hadith. The Quran reads: "if members of two
Muslim tribes fight against each other and kill each other,
mediate between them and resolve the dispute. If anyone
of them does not accept the resolution and still offends
the other side, fight against that group till they accept
the settlement and obey Allah's impera ti ves" (Sura
Hajarat, aya 9). Muhammad says that: "anyone who brings
about separation in the Islamic community; cut them with
sword Lkill theITIl whoever they are" (in Awda, 1969: 99).
B. Qasas (inflecting an equitable death or injury)
and diva (blood-money): the law of the gasas or talio
(equitable death or equitable injury) was applied equally
for mutilations as for murder. The Quran reads: "it
was obligatory . . . to take a life for a life, an eye
for an eye, a nose for a nose, an ear for an ear, a
tooth for a tooth and also to inflict an equivalent
amount of injury to the offender. If the outlaw is
forgiven by the plaintiff or the slain's wali (guardian)
the culprit is free" (Suratu Maada, aya 45). Also, Allah
says: "if an individual offended you, offend him
equally, if someone harms you give him equal injury."

175
 The laws of qasas (equitable death or injury)
and diva (blood price) are different from those of hudud
(specified penalties) in that they are considered as
the individuals' rights and not divine right. According
to Islamic law an individual's right can be forgiven
by himself or can be paid for in installments if the
offended wishes. Pre-meditated murder and/or injury
comes under the law of qasas or talio on the basis of
which the murder's wali (guardian) can take the murderer's
life or else, they can ask for the diva (blood price)
which is 100 camels. An injured individual also has the
right to exact the equitable injury to the offender or
ask for diva (compensation) for the injury.
C. Tizir (discretionary penalty):is the punishment for
those types of crimes for which the Islamic shri~ has
t:
not specified hudud for. Tazir comprises the various
kinds of admonitions by which the gadhi (judge)
reprimands the offender. Its meaning has been broadened
to include the right of the judge to impose whatever
penalty he deems appropriate, provided that it does not
exceed the legal limit. The severity of this punishment
varies according to age, sex, and social standing of the
criminal and the seriousness of the offense. Under the
category of t~zir, the jurists have included various
punishments, such as warning, imprisonment, flogging and
even fines were imposed under this heading.

176
 General practice has recognized the imposition of
punishments of the tdzir category on persons who neglect
religious obligations (such as prayer, fasting, zakat
(almsgiving), stealing less than 10 dinar (1 dinar = $2.50),
attempted theft, intercourse with one's own wife while she
is menstruating, zahar1J (a special type of divorce),
, fraud
in weights and measures, taking false oath, eating pro-
hibited food such as pork and blood and others.
In this secticn we have dealt with different types
of penalties based upon the Islamic shari~ and they are
categorized as follows~

1. Physical penaltibs
a. punishment by death i.e., hanging, beheading,
stoning, slaughtering, rifle squad, blowing
up with cannon
b. amputation of hand and foot
c. flogging (geld)
2. Restrictions of freedom, i.e., imprisonment or
exile.
J. Monetary fines.
It should be noted that many of the above mentioned
physical penalties are not applied in the Islam world any
more except for the Saudi Arabia.
I believe, therefore, one can generalize that in
essence Islam has five major and very important principal
objectives:

177
 1. to ensure (hafz) order in human organization
2. to ensure individual and group property
J. to ensure individual and group life
4. to ensure human reason and wisdom
5. to ensure the propagation of mankind.
In the next section I will discuss the punish~ent

for the two general classes of wrongs namely jenha (torts)

and jurm (crime) at the tribal and local level. An
endeavor will be made to compare and contract the Islamic
shari~with the Pashtuns' tsali (traditional codes),
customary laws and their way of dispute settlement.

178
 FOOTNOTES FOR CHAPTER VI

lThis hadith was translated from the Arabic by this

author.

2Maspasheen starts when the sun declines toward the

horizon. The Afghans measure this interval of tima,with
their shadow. Therefore, maspasheen begins when the shadow
of a man equals one fifth of his height and continues until
his shadow equals his height.

JMakhustan lasts from the end of the masham (dusk)

till the beginning of dawn, within this interval of time a
prayer is permitted anytime.

4Many women in rural Afghanistan cover their faces

from almost all men except their legal mahrem (husband,
brother, father, son, son-in-law, FaBr and MoBr) by a piece
of cloth called teakre and chadari, which they always wear
except when they go to bed to sleep. In literature on
Middle East this custom is called perdah (shawl). Because
of this custom many women in rural areas and villages stay
at home in Afghanistan. In the cities uneducated women
also wears chadari (special veil).

5Quran means "reading." The name is derived from

the Arabic garaa or garaat "to read" or "to recite."

6FOqaha is an Arabic word and a plural form of faqih

meaning jurist.

7Muharnmad was forced by some powerful non-believers

such as Abo Jahl in Mecca, to leave the sacred city. He
and some of his companions left secretly at night in 622
A.D. This event in the history of Islam is called the
Hijra (flight of Prophet Muhammad to Medina). In dating,
Muslims use their own era, dating from the Hi,jra, 622 A.D.

8Abu Hanifa is the founder of madhhab al Hanafi

which is followed by majority of the Sunni sect.

9The decision on a point of Law is called fa twa and

the person who delivers it is the mufti. Very often the
delivery of fatwa is done by a qadi (judge) or a jurist.

179
 lOOmer was the second ckali£a, very powerful
politically and with a vast knowledge. Based upon some of
his argrument, many suras were revealed to Muhammad (
supporting his points and his ideas. Muhammad never roju
(asked) God to help him in converting non-Muslims to Islam
but he requested help in the case o£ Orner before he became
a Muslim.

l1Iranians mostly belong to the Shiite sect.

12A stripe is a blow with a special whip by a judge.

The whip is made of an animal skin filled with silver coins
and utilized by judges in the Islamic courts in order to
punish the criminals.

lJGenerally speaking there are two types of divorce

practiced among the Muslims. (1) A husband or a wife can
get a divorce through the courts. (2) If an individual
(Muslim) tells his wife, "Leave me alone," or "Go to your
father's house," according to Islamic sharia~ they are
separated. If they change their minds they can get married
again. The time between the first day of divorce and
getting remarried is called zahar.

1&>
 CHAPTER VII

JUSTICE AND JUDGEMENT

The central theme of this study revolves around the

anthropology of law and dispute settlements. Therefore,
this subject deserves a brief discussion of its historical
background. definition, development, and its contributors.
As compared to other subfields of anthropology, the
anthropological investigations of legal systems are
relatively few in number. However, these limited numbers
of works have generally been of high quality. In the next
few pages, I will briefly discuss a few studies done in
this area and also I will point out the relevance of these
studies to my research.

Classification of Legal Systems:

If one were to set out to talk about primitive law,
one has a choice of three views. The first view associates
law with court and codes supported by governments. This
view becomes invalid, however, when we see that there are
very few preliterate societies who have laws in this sense.
The second view was put forward about a half a century ago
by Malinowski (1926). In his view, law includes "the rules
which curb human inclinations, passions, or instinctive

181
drives; rules which protect the rights of one citizen
against the offense of the other; rules which pertain to
sex, property and safety." (Malinowski in Redfield, 1967:J),
These rules are found everywhere and in this sense law
exists even among the most primitive society. Malinowski
notes that primitive people, like other people, ar~ kept
from doing what their neighbors do not want them to do
chiefly not because of courts and policemen, but for many
other personal and social reasons. These personal and
social reasons are norms of conduct and ways of social
control.
A third view, taking a middle road, stands by itself
but also overlaps with the others and is the widest of all
(1967:4). According to Sally Falk Moor (1969:25J) there
are essentially three different types of classification of
legal systems: (1) a dichotomy founded on the basic
differences in social organization between technologically
simple and technologically advanced societies; (2) an
evolutionary scheme focusing on legal systems developing
from non-centralized to centralized political systems; (J)
a type which contrasts dispute resolution by force or bargmn
between the parties and arbitration of a third party.
The first type is called the Maine-Durkheim-Gluckman
tradition. This type classifies societies into categories
and looks for the development of law among them. Maine
divided societies based on kinship and territory. Durkheim
recognized societies based upon mechanical or organic

182
solidarity. Gluckman (1955b, 1965c) distinguished a
division between tribal societies and complex societies.
Gluckman argued that tribal and differentiated societies
are different from each other in legal procedures as well
as in basic legal concepts.
The second kind of classification is exemplified by
Diamond (1965) and Hoebel (1954). The former as an
orthodox follower of L. H. Morgan (Moore 1969) attempts to
identify what he considers to be the legal concommitants of
each stage from savagery through barbarism to civilization.
According to Diamond, courts, for example, appear at the
first agricultural stage. However, it is not yet known to
anthropologists in what kind of settings courts are found.
Hoebel believes that the social series is both morphological
and historical and consists of a sequence from simple to
complex, from non-centralized to centralized, from private
law to public law. According to Hoebel the greatest
historical change in legal systems is the shift from systems
of self-help to systems of law enforcement by government
officials.
The third kind of classification (dispute resolution)
divides the legal system into two types: "political" and
"judicial. " In the first type there is no judge and
trouble cases are settled by a mutual testing of the two
parties' social strength and social norms are not signifi-
cant to the extent to determine the outcome. In the
judicial type there is a judge who has authority to make

183
 judgments and to hand down a decision. Bohannan (1967=53)
has made a similar division. He divides power systems into
unicentric and mUlticentric types. Among the unicentric
power systems there is a central institution of legal
authority, which resolves trouble cases through the exercise
of force. Multicentric power systems, which inclu4~ the
law of stateless societies and international law, are
characterized by the absence of any subordinate authority.
Moore (1969) tells us that all these typologies narrow the
focus to certain differences in the conflict resolution
process, rather than creating the wider field considered by
Maine, Durkheim and Gluckman.

Definitions of Law:
If it is defined in terms of procedure, law is "social
control through the systematic application of the (physical)
force of a politically organized society." (Radcliffe-Brown,
1933:202). If the definition of law includes the attribute
of physical force applied by an organized state then not
all societies could be said to have law, as exemplified by
the Nuer, the Andamanese and the Kapauku, to mention only a
few. If, however, we define law in the broad sense as
"most processes of social control," as Malinowski did, then
all societies may be said to have law. In political theory,
one group identifies the law of a society as the minimal
rules of conduct acknowledged by the members of that societ~

whereas the opposing group identifies the laws of society

184
as the formal commands of the governing authority of that
society. As cited in Moore (1960) Lenin argues that law
does not exist in society without a developed government,
while Marx and Engels, influenced by Morgan, admit that
law prevails among primitive societies (Nader, 1965b:4).
According to Schapera (1938:38), "any rule of conduct
likely to be enforced by the courts," is law. To Gluckman
law is "the whole reservoir of rules ... on which the judges
draw their decisions" (Moore, 1969:258). Bohannan sees
law as "doubly institutionalized," as "that body of binding
obligations •.. which has been reinstitutionalized within
the legal system (1967:47). For Bohannan the difference
between legal and other rules is that legal rules are given
double legitimacy: they exist as rules in social institu-
tions, but become law only when they are enforced by legal
institutions (Bohannan, 1967:47). Pospisil (1958) defines
law as "rules or modes of conduct made obligatory by some
sanction which is imposed and enforced for their violation
by controlling authority." Bohannan, then, emphasizes
legal institutions, and Pospisil the potential sanctions
emanating from a controlling authority. Both of these
authors do take into account the element of force, but they
put emphasis on the institutional context in which conflict
resolution and law enforcement take place (Moore, 1969:256-
260) .
Upon reviewing all of these definitions one can come
to the conclusion that definitions of law have shifted from

185
the broad and somewhat vague Malinowskian type that speaks
of the mutual rights and obligations of individuals, and of
the sanctions and incentives residing in ordinary social
relationships, to relatively recent specialized definitions
that emphasize not only force, but also the institutional
and organizational contexts of legal obligation. T~is is
an important change because it also reflects the direction
in which a good deal of research work has gone.
Laura Nader (1965b:6) tells us that anthropologist
are no longer attempting to prove the presence or absence
of law in primitive societies by reference to any single
definition of law. Rather, they want to understand how the
law is best conceived of for research purposes.

Treatment of Universals:
Some nineteenth century evolutionists postulated
theories of stages of legal development. For example, Maine
believed that law passed through three stages of development
such as: law by themistes, customary law, and the code of
law. But, since Maine, the treatment of universals in the
realm of law remained in the background until Malinowski
and more recently Hoebel, Gluckman and Pospisil expressed
their thoughts. Their treatments of universals are, however,
quite different from one another, and all differ from Maine.
Malinowski (1926) refers to law as one of the derived or
instrumental needs that in all societies have to be satis-
fied as urgently as biological requirements if man is to

186
survive. Or, as he states, there must be in all societies
a class of rules too practical to be backed up by religious
sanctions, too burdensome to be left to mere goodwill, too
personally vital to individuals to be enforced by any
abstract agency. This is the domain of legal rules (Nader,
1965b:7). Hoebel takes a different route as regards the
question of universals. He assumes that certain legal
relations are universally present and thus may be used as
categories in cross-cultural comparisons. These are a few
examples:
Homicide within the society is under
one set or conditions or another,
legally prohibited everywhere •.. virtually
every society assumes the relative social
inferiority of women ... thus it appears to
be universal on the primitive level (and
general on the civilized level) that the
husband may kill the adulterous wife caught
in flagrante delicto. For the wife to
enjoy such a privilege-right is more rare
..• law universally supports the principle
of relative exclusiveness of marital
rights.
Adultery seems always to be punishable under
the law, although just what constitutes
adultery will be variable as marriage and
kinship forms vary .. . AII legal system,
primitive and civilized, assume the impor-
tance of the kinship group, and all support
it as a medium of inheritance of property
rights ..• All legal systems give cognizance
to the existence of rights to private
property (1954:286-287).
Pospisil (1967:25-38 and 1972:15-25) by means of cross-
cultural studies, derived four universal attributes of law:
authority, intention of universal application, obligatoi,
and sanction. An authority is an individual or a subgroup

187
who possesses an influence which causes the majority of the
members of the group to conform to his decisions. Many
ethnographers have declared the absence of authority in
certain cultures. Pospisil quotes from Gusinde (1937) on
the Yaghans, who tells us that there is never a shortage
of men who, because of their old age, spotless char,acter,
long experience, and mental superiority gain such an extent
of moral influences that is equal to peculiar domination.
The second attribute of law is called the attribute
of intention of universal application. This attribute,
found to be present in all legal decisions, if applicable
as a criterion of law, demands that authority in making a
decision intends it to be applie~ to all similar situations
in the future.
Nader (1956b:7) and Lowy (1974:954) confuse obligatoi
with obligation. Obligatoi is different from obligation in
that the latter only includes duty. The former includes
duty of the one party and obligation of the other. Obligatoi
is a social relation between the privileged party possessing
the right and the obligated party who fulfills his duty
toward the former. Sanction is an important aspect of the
law, and a few authors even equate it with law. This,
however, is an extreme and erroneous position. Pospisil
(1972:23) maintains that sanctions alone are incapable of
defining phenomena as laws because there are many nonlegal
(e.g. political) decisions which carry sanctions. Political

188
decisions are not legal, because they lack the attribute of
the intention of universal application.
As regards the legal sanction, it has been usually
conceived of as having a physical nature. In this latter
work, Hoebel (1954:28) defines sanction as the following:
itA social norm is legal if its neglect or infraction
, is
regularly met, in threat or in fact, by the application of
physical force by an individual or group possessing the
socially recognized privilege of so acting." Pospisil
(1972:25) is of the opinion that sanction need not be of
physical nature only. The effectiveness of socio-psych~~

sanctions is an obvious phenomenon among human beings.

Pospisil defines legal sanction either as a negative device -
withdrawing rewards or favors that would have been granted
if the law had not been violated - or as a positive measure
for inflicting some painful experience, physical or psycho-
logical.

The Concept of ~aw Implicit in Actual Studies:

This section of the study briefly describes the actual
work that has been done in the field of anthropology of law,
as opposed to those in the formal definitions as has been
discussed before. In Crime and Custom (1926), based
especially upon his Trobriand data, Malinowski discussed
the processes through which people were forced to obey the
rules and customs of the community, but did not describe
legal rules themselves. More than a decade later one of the

189
 landmarks in the anthropology of law was a careful and
thorough report on legal rules, Schapera's Handbook of
Tswana Law and Custom (19)8). Sally F. Moore (1969:261)
tells us that the book sets an unprecedented standard for
the detailed reporting of· rules, and does so without the
slightest nod in the direction of theoretical quest~ons.

Schapera describes such rules of law precisely as they were

enforced by the Tswana, as well as the social organization,
conditions and court systems that implemented the rules.
The book was written for the government officials and the
Tswana themselves (not for anthropologists) to place on
record for their information and guidance. The book
illustrates traditional and modern laws and related customs
of the Tswana tribes.
The publication of The Cheyenne Way (1941) by
Llewellyn and Hoebel opened a new page in the history of
the anthropology of law. The authors treated individual
cases as emerging from problems that required solution, the
basic general task being the maintenance of order. In the
book it is reported how violations of the rules were
handled, and how particular trouble-cases were sorted out.
The case material and the description of the setting in
which cases arose were elicited largely from elderly in-
formants. This book strongly affected the development of
legal anthropology by its use of cases, What delighted
Llewellyn the most in this study, since he himself was a
lawyer, was the practice of the lawYer's art, the craft

190
skill of the profession. The authors found this very skill
in the Cheyenne's resolution of disputes, and in their ways
of dealing with rule breaking. They were also fascinated
by the effective policing and order keeping techniques in
the tribe when it assembled as a whole each summer.
The Law of Primitive Man (1954) by E. A. Adamson
Hoebel once again enlightens us about the author's interests
in the legitimate application of force. In this book,
which consists of three major chapters - the Study of
Primitive Law, Primitive Law-Ways and Law and Society - the
author sketched the society, culture and law of a handful of
peoples ranging in organizational complexity from the
Eskimo to the Ashanti. All descriptions are partially
cultural and partially organizational. Each description is
accompanied by a list of what Hoebel considers to be the
basic jural postulates on which the legal system of each
people is founded. Hoebel does not indicate the criteria
he used to decide what should be indicated; nor does he
specifically cite his sources, though he indicates that he
drew his postulates from an examination of cases. There
are also several general essays included in the book in which
the nature and development of law are discussed. Hoebel
asserts that the most significant change in the historical
development of law is the shift from what he considers
private law (enforcement by kinsmen and associates) to
public law (enforcement by government), from personal re-
taliation recoupment to impersonal justice. Despite his

191
interest in enforcement, Hoebel conceives of law as dealing
with the enforceable side of a pattern of values.
The publication of The JUdicial Process Among the
Barotse by Max Gluckman in 1955 brought about new ideas in
the domain of the anthropology of law. This is the first
book to describe the proceedings before a tribunal .jn a
technologically simple society from the point of view of an
anthropologist who had actually seen them. These were not
cases recalled by informants like those in The Cheyenne Way,
but cases observed as they were argued over, thrashed out,
and ruled on. The book is a study of the techniques of the
judges in dealing with the disputes put before them.
In 1957 a casebook of dispute settlement entitled
Justice and Judgment Among the Tiv by Paul Bohannan was
published. In this book the political structure of the Tiv
was described. The author makes a distinction among the
Tiv view of the law, "the folk system," and the anthropolo-
gist's analysis of it, which he calls "the analytic system."
Bohannan's technique of describing the folk concepts of Tiv
law is to take Tiv terms and explain them at the same time
that he gets on with an illustration of a court case. He
tells us that the Tiv have "laws" but not "Law." Bohannan
thus argues that the idea of a body of rules does not exist
in the folk concepts of the Tiv. The Tiv, according to him,
do not think either of law or customs as organized in a boqy,
but rather conceive them merely one by one, as applied in
the specific social situations in which they come up.

192
 Based upon this book, Bohannan's contribution to the
methodology of description lies in his formulation of the
folk versus the analytical system. This was an argument
between Bohannan and Gluckman (Nader, 1965b:11, Moort· in
Nader, 1969:343-348, and Gluckman, 1969:51-355). Bohannan
raised for inspection statements made by Hoebel (1~59:46)

and more recently by Gluckman (1962) that encourage anthro-

pologists to discuss tribal law using the principal con-
cepts of Western jurisprudence. Gluckman states, "The very
refinement of English jurisprudence makes it a better
instrument for analysis ... than are the language of tribal
law." (1964:14). Bohannan, (1969) on the contrary, conten:ls
that to describe and analyze the system of justice and
judgment of one culture through the interpretation of a
system of justice indigenous to a second society can only
lead to confusion and distortion. Moore tells us that
Bohannan is passionately interested in perception, in the
way a culture sets up and classifies reality into categories
(Moore, 1969 in Nader, 1969:344). Bohannan tends to approve
the Whorfian Hypothesis 1 and to follow it in this particular
respect. Bohannan implicitly charges Gluckman with having
converted the Western legal folk system into an analytical
system, with having forced the Lozi folk concept into a
Western model. Gluckman (1969) and Pospisil (1972) both
(particularly Gluckman), after they met at the Wenner-Gren
conference in August 1966 in Austria and talked over this
issue, are agreeable with Bohannan about the significance of

193
folk systems, but both are in disagreement with him about
the use of many folk terms which make it hard for the
reader in English to understand dozens of folk terms in one
page.
During my field work I neither fully followed Hoebel
who collected his data from elderly informants (mem~ry

ethnography) nor did I completely follow Gluckman who

relied heavily on court observations and court decision-
making. I took the middle road. First, I observed some of
the trouble cases resolved through jirgah and maraka (the
council of elders). Second, I collected data relevant to
conflict resolution and procedures of conflict settlement
from my informants. And, third, I gathered information
about the trouble-cases which were referred to the courts.
My data from Almara supports Pospisil's (1972) con-
tention that Law is universal. The Almara villagers have
laws. There are rules which regulate people's behaviors.
These rules are applied to everybody in the community.
There is authority and it is vested in the council of elders.
I should note that structure of authority is not organized
and the political functionaries are not specialized. There
are no modern police departments and modern courts at
village and tribal levels.
Methodologically in describing the concepts and native
terms I follow Bohannan (1969). I believe, as Bohannan does,
it is generally difficult to find equivalent terms in
English for native terms because different people have their

194
 own categories. Therefore, in this study, I first intro-
duce and define a native term and then whenever the term
appears, I give equivalent English translation or gloss.

Dispute Settlement:
The central theme of this dissertation includes the
ways and means by which Pashtuns resolve their conflicts.
The concept of social conflict was discussed for the first
time in the newly organized American Sociological Society
in 1907. The central paper was read by the Social Darwinist
Thomas N. Carver. Carver (1907 as cited in Coser 1956) said
that "there may be many cases where there is a complete
harmony of interests, but these give rise to no problems
and therefore we do not need to concern ourselves about
them." Carver (1907) maintained that only where disharmony
and antagonism prevailed could one speak at all of a moral
and of a scientific problem (Coser 1956:15).
Social conflict was once again the main topic of
discussion in 1930. Howard W. Odum, at the twenty-sixth
annual meeting of the American Sociological Society in his
presidential address, stated that social conflict is socio-
logically an unexplored field. The sociology of conflict
had yet to be written. A generation later, Jessie Bernard
has once again asked, "Where is the modern sociology of
conflict? Even a cursory examination of the contemporary
work of sociologists clearly indicates that conflict has
been neglected indeed as a field of investigation." (Coser"
1956:15-16).

195
 In exploring conflict theory one encounters a number
of terminological problems. Conflict is used colloquially
in anthropological and sociological literature to refer to
fighting, confrontation, tension and to incompatibility.
The two usages are related - incompatibility of aims leads
to fighting. Fighting is bad, and conflict too becomes a
value - laden ter~ Conflict ought to be resolved. According
to Lloyd (1968:29) incompatibility is a more neutral word.
It is in the fighting or confrontation sense than I use the
term conflict in this essay as in fact it is used by many
other anthropologists. Sociologists generally use the term
conflict in the sense of incompatibility and tension.
To Westerners in general and perhaps to other nations
of the world conflict is "a bad thing." According to
Bohannan (1967:xi) Westerners as a category of people do
not like to think about or talk about cancer, or hate or
death - or conflict. Bohannan tells us that it "is a
tactical error, because conflict is just as basic an
element as sex in the mammalian and cultural nature of man"
(1967:xi). Coser (1956:20) and Dahrendort (1957:135)
believe that conflict of some sort is the life of society.
According to Coser (1956:20) progress emerges from a
struggle in which individual, class, or institution seeks
to realize its own idea of good. Weber insisted that
"conflict cannot be excluded from social life ... Peace is
nothing more than a change in the form of conflict, or in
the antagonists, or in the objects of the conflict" (1956: 21).
To Marx and his followers the history of mankind is often
presented in the form of a record of wars between nations
and the exploits of individual monarchs, generals or states-
men (Burns 1966:10).
Conflict has been with human beings since their
beginnings. It is a part of our life and it is not..... always
bad and dysfunctional. A certain degree of conflict is an
essential element in group formation and the persistence of
group life. Bohannan tells that:
We shall never banish conflict ... Rather,
conflict must be controlled and must be
utilized profitably in order to create
more and better cultural means of living
and working together... Conflict is use-
ful. In fact, society is impossible with-
out conflict. But society is worse than
impossible without control of conflict.
The analogy of sex is relevant [her~:
society is impossible without regulated
sexuality: the degree of regulation
differs among societies. But total re-
pression leads to extinction; total lack
of repression also leads to extinction.
Total repression of conflict leads to
anarchy just as surely as does total con-
flict (1967:xi-xii).
The central theme of this study also revolves around
the concept of conflict. It has been emphatically indicated
in this Chapter VII that conflict persists among the Pashtun
villagers. Yet in this chapter data has been presented
which indicate that there is a limit to the conflict situa-
tion. There are checks and balances, and there are norms
and rules which do not allow conflict to exceed its limit.
There are special people who apply.these norms and rules in
order to control conflict. In this manner in my theoretical

197
point of view of conflict theory I am more inclined toward
Gluckman (1969) and Bohannan (1967 and 1969) rather than to
Parsons whose view of conflict is that of having primarily
discruptive, dissociative and dysfunctional consequences.
Parsons considers conflict primarily a "disease." He
attempts to establish a parallel between a medical man
trea.ting a sick patient and a propaganda specialist treating
a sick society (Coser 1956:22).

Case studies:
As has been mentioned before, it was not until the
pUblication of Llewellyn and Hoebel's The Cheyenne Way
(1941) that anthropology produced a book focused on legal
cases. The argument that the case study is the best field
technique for the investigation of dispute settlement, :legal
rules, and legal concepts is presented in a recent article
by A. L. Epstein in "The Case Method and the Field of Law"
(1967). In this paper the universal characteristics of
law as legal systems are described. Epstein starts with
rules, concepts and categories and then proposes the use of
the case technique rather than informants to discover what
they are. Then he talks about dispute and considers it as
a universal phenomenon among human societies. Epstein
finally suggests that the sequence of events be called a
case, although it may be isolated for certain analytical
purposes, must be considered in its social matrix if one is
to fully understand its place in the social process.

198
 In his Introduction to The Craft of Social Anthro-
pology (1967) Gluckman hails the extended case method as a
new tool in social anthropology. According to Gluckman,
"This new kind of analysis treats each case as a stage in
an ongoing process of social relation between specific
persons and groups in a social system and culture. ':" (1967 :
xv) .
Richard T. Antoun's Arab Village (1972), Schuler
Jones' Men of Influence in Nuristan, Afghanistan, (1974) and
Laura Nader's "Style of Court Procedure: To Make a Balance"
(1969) are important case studies. Antoun's and Jones'
studies are best examples of the applicability of method
and practice in the same culture area where this study has
been conducted. Nader's study is important because it is
an example of case analysis. Antoun studied an Arab village
called Kufr al-Ma situated in the eastern foothills of the
Jordan Valley. All through his fieldwork he himself ob-
served nine different trouble cases from their starting
point until their ending. Some of these cases involved
marriages, others property damage, and some were rape cases.
Out of all these nine cases only two, an injury case and
one rape case, were brought to the court. The remaining trouble
cases were all settled through the council of elders or
through the village mukhtar (village semi-official leader,
like a village mayor elected from the people of the village1
Jones' in Men of Influence in Nuristan makes a survey
of the Nuristani people in Afghanistan. He discusses their

199
political organization in the absence of rulers. The
author identifies the politically significant individuals
and defines their roles in the affairs of the valley, where
they seek to control political events by influence rather
than authority. Several detailed case studies of actual
disputes are presented and the ways in which socia~ equi-
librium is maintained or restored are described. The very
last chapter of Men of Influence, "Asel Din Khan v. s. Wakil
Azim Khan" is a very exciting case study. Each of these
individuals were le~ders of two opposing factions. One
leader was in favor of constructing a road to the village
while the other was opposed to it. This struggle lasted
for years while there were shifts of power from one faction
to the other, but finally Asel Din killed Wakil AzimKhan.
After one year of lapse, two of Azim's agnates killerl Asel Din.
Jones says that feuding is not present, but the case shows
it ~ present and stlllgoing on between the parties involved.
Laura Nader's "Style of Court Procedure: To Make the
Balance" looks at a Mexican Zapotec court of law. She has
used materials taken from the film "To Make the Balance"
(1967). There are five cases in the film. The case
studies show that a compromise arrived at is by adjudication
or, in some cases, adjudication based on compromise. The
particular settlement to a given dispute may be a fine, jail,
ridicule, or acquittal of the principals in the case, but
the aim is to rectify the situation by achieving or rein-
stating a balance between the parties involved in a dispute,

200
a word that is synonymous with imbalance among the Zapotec.
Whatever factors enter into the decision-making process,
the restoration of equilibrium determines the final settle-
ment and is the goal of this system of dispute settlement.
The main body of the paper is divided into three sections:
the socio-cultural setting, the case materials, an4 a
discussion and comparison. This technique is useful and is
potentially promising. In fact, each case has a spatial
and temporal dimension. The investigators can observe what
is happening and why, when and where the case started, who
are involved in tne trouble cases and why, who is the
decision-maker and why, and how the dispute is settled.
From a very short case study we might be able to answer
many questions, and we can use one case for different kinds
of analyses even in different areas of anthropology.
In my analysis of trouble-cases I followed Epstein
(1967). Incidents and episodes observed by the anthro-
pologist and recorded in his notebook are the material
which he builds up his account of the social system. The
cases collected for this study are trouble-cases. By
trouble-case, I mean a conflicting incident which disturbs
peaceful and balanced social relationships between the
parties involved. Theft, injury, adultery and homicide are
examples of trouble-cases. Case method, is the study of
particulars cases from which we make generalizations.
According to Epstein (1967:215) there are three aspects to
the problem: the inquiry into guilt or responsibility for

201
a particular event; the process of adjudication between the
conflicting claims; and the modes of redress and enforcement
where a breach of entitlement has been established or
assumed. The case method has the further advantage that,
in delineating aspects of law, we are also able to map out
a number of problem areas and suggest topics for further
,
research even outside the domain of anthropology.
It should be pointed out that the case method does
have disadvantages. One may have to sit through many long
disputes before a case comes up involving some novel or
critical point on which one is anxious to have information
and, indeed, the whole period of fieldwork may pass without
such issues coming up for juridical discussion. I overcame
this problem through asking my informants about the cases
that happened in the past.
For the purpose of the analysis, I will categorize the
trouble-cases under the subheadings of theft, land, mounta~

injury, women, adultery and homicide. I will first discuss

the tsale 2 (code) for the settlement of dispute for each
category. Then I will present 29 cases from 1940 to 1975
which have been collected randomly and analyzed in this stu~·.

The future of the anthropology of law:

The first major contributions of the twentieth century
to the anthropology of law were written during the period
of 1920 to 1941. Before that the works on law in non-
western societies were written by colonial administrators,

202
missionaries, soldiers and the like. During the 1950's a
series of important anthropological monographs on the law
or particular non-western societies was produced. The
1960's was the time during which anthropologists began to
recognize their thinking on law in terms of a choice of
problem, and methodological approach. Since then the
,
anthropology of law has improved considerably in theory
and method. The scholars in this area have placed more
emphasis on the development of cases and on the development
of legal rules, and procedural practices through time.
This is partly because of the analytic problem thrust on
anthropology by a rapidly changing world. Anthropologists
have realized that in our rapidly changing world the struc-
tural-functionalists synchronic approach was no longer
profitable and productive. It is also partly because it is
the obvious next step after the kind of ethnographic work
that has already been done. Future law studies in anthro-
pology are most likely to follow this trend. Moore (1969)
tells us that generalizations about law, and about the
rules, ideas and procedures of the resolution of conflict
have often been derived from the case studies from the
past. Cases will be considered in the future in greater
detail, as microcosms of dynamic interaction, and also as
a part of both short- and long-term processes of instituti~

continuity and change.

Gluckman in Judicial Process (1967) reports that
during his fieldwork among the Barotse he had approached

20J
each case as an isolated incident before a court; but he
now considered that the next step must be the intensive
study of processes of social control in limited areas of
social life viewed over a period of time. This emphasis
on detailed, temporally extended case studies also implies
a focus on processes of change. According to Moor~ (1969)
the anthropology of law is likely to see more historical
investigations of institutional change over periods of
varying length. Except for Schapera (1941) anthropologists
have given little attention to legislation. This will be
another potential area for legal anthropological investiga-
tions.
Just as the dimension of time increases the number of
analytical problems preceived, so does the collection of
detailed cases. For instance, it is significant to under-
stand not only what the rules are concerning the transfer
of land, but also how often it is actually transferred. In
the past the number of cases of particular kinds came to
the courts or other dispute resolving bodies, but why some
kinds of matters are more often in dispute than others has
not been gone into at all; nor do we know between what sort
of people and in what sorts of situations these disputes are
likely to arise. On the other hand, we do not know what
kinds of situations do not produce disputes.
Laura Nader (1974), in addition to isolating conceptual
boundaries, maintains that case studies may also be useful
as tools to study the choice of dispute settlement mecha~

204
 that consistently result in differential treatment of
certain persons. This, in fact, leads the ethnographer to
a more extended investigation of the relationship between
persons and sanctioning groups. Moore (1969:294) notes
that there is a new emphasis on sequence of events - on
legal transactions, disputes and rules seen in the,dimensian
of time. Case studies of this sort bring the minutiae of
social interaction into focus and thereby reveal certain
general processes in detail, whereas historical studies
illustrate large-scale continuities and changes. In the
future law and legal institutions are likely to be analyzed
simul taneously fron. a long-term historical perspective, and
from the perspective of individual-centered, short-term,
choice-making, instrumental action and interaction.
The inhabitants of Almara have developed a special
way of maintaining their social order utilizing mechar.isms
of social control and dispute settlement. This response
is noteworthy considering the social, historical, ecological
and geographical constraints placed upon them. In this
chapter we will discuss the procedures and processes of
Almara conflict resolutions at four levels. Toward this
end we will define and compare the concepts of mediation,
arbitration, "intermediary," oath and ordeal(s). A series
of "trouble-cases" will be analyzed cases.
Pashtuns are people who live by a body of tsali
(codes) known in the literature as "tribal laws," "tra-
ditional laws" or "customary laws." These tsali (plural

205
of tsale, Pashto) are thought of as common and distinctive
to all Pashtuns particularly in Paktya Province in Southern
Afghanistan. The Pashto language may be included under
this heading as it is a necessary and distinctive feature,
but in itself it is not sufficient; we are not dealing
simply with a linguistic group. Pashtuns have an e~plicit

saying, "We are Pashtuns who do "pashto, " not merely who
speak Pashto;" and "doing Pashto" in this sense means
living by enacting the code or Pashtuns' shari~, in terms
of which some people who speak Pashto consistently fall
short.
According to Barth (1969:119) these tsali (codes) are
imagined by the actors to be consistent with, and comple-
mentary to, Islam. The tsali originated from the Pashtunf
,
customary or traditional laws, and are interpreted by a
particular category of people called marakachiah (traditional
tribal judges, lawyers, mediators and arbitrators). The
notion of Pashtun tsali (codes), mediation and/or arbitration
is expanded below.
A tsale is a trail or a pathway, demarcated by
pillars, in order to lead pedestrians and passengers to
the right goal or target. As mentioned in Chapter VI, the
Muslim Community developed shari~ to lead them to the right
way in their lives, the Pashtuns have developed their own
way of dealing with their social, economic, political and
legal systems to maintain peace and harmony in their own
small social field in the Afghan social system. Moore

206
(1973:721) has observed that " •.. It is well established
that between the body politic and the individual, there
are interposed various smaller organized social fields to
which the individual belongs. These social fields have
their own customs and rules and the means of coercing or
inducing compliance." ....
Beyond those general similarities the Pashtuns'tsali
or "Pashto" (also called Leyar) in many aspects deviate
from the Islamic sharia' (Quran and hadi th) • An informant
told me the following in this particular respect: "We
inherited the Islamic sharia' from the Prophet Muhammad.
What we call tsale is left to us from Abu Jahl." Abu Jahl
was Muhammad's uncle who was a very strong opponent of his
nephew and Islam and did not himself profess Islam until
the end of his life. As we continue the discussion and
explain several tsali (codes) and penalties the difference
between the two will be made clear.

Jirgah maraka and takhum:

The Pashtuns settle their disputes in two ways: Jirgah

and maraka. Many writers (Newell (19(2); Wilber (1962);
Barth (1952, 1959 and 1969); Dupree (1973) havo written
about the .iirgah 3 or "Pathan council" but no or.e has dealt
with the terms maraka and tukhum. During my last field work
period (September 1975 to September 1976) among the Almara
villagers and neighboring communities, I re-examined the
concepts of .iirgah, maraka and tukhum. These terms are

207
utilized in different contexts and have different
meanings.

Jirgah (Village Council):

A Jirgah is a meeting usually attended by elderly

villagers. The jirgah (village council) members may get
,
together in order to talk about making a new dike for
irrigation; the possibility of building a new village
mosque; the exploitation of certain portions of the common
mountain and forest; or which types of the trees should
and should not be cut. The Jirgah also may elect several
people as guards to look over the irrigation system and to
guard the forest so that other people should be kept from
utilizing and exploiting of their property. The iirgah
may assign a salary for these guards. On some occasions
serious issues such as waging warfare against another
community or electing of representatives for the Loya Jirgah
(Grand Assembly of Afghanistan) and Meli Jirgah (National
Assembly) is conducted. The names for the Grand Assembly
(Loya Jirgah) and National Assembly (Meli Jirgah, as
named in the Constitution of the Republic of Afghanistan
1977) is derived from the term for village or tribal jirgah
(Constitution of the Republic of Afghanistan 1977:7).
The number of participants in the jirgah depends on
the aims and importance of the issue to be discussed. When
they elect their representatives or they discuss the question

208
of confrontation with another community very often all
men villagers may come to the meeting. If there is to be
an election of three or four individuals for guarding the
forests and irrigation channel system or building a new
mosque in the village only some of the elderly individuals
may participate. '
Maraka and tukhum (both Pashto terms) refer to the
meetings of the village councilor council of elders. They
differ in terms of their symbolic meaning, function and
the number of people involved. Before discussing their
differences I would like to point out some of the features
they hold in common. Maraka and tukhum are both meetings
of men, called by one or several of those present (or those
who are not present, the litigants) so as to arrive at a
joint decision on a matter of common concern. The matter
of common concern may be a resolution of conflict between
the parties present or a settlement of dispute between a
group not present. It might be a resolution of conflict
over a piece of land or a settlement of a homicide, injury
or theft. The relationship between members of the maraka
and the tukhum is one of surface equality with no speaker,
leader or chairman. Equality is emphasized by circular
seating on the ground and the equal right of all to speak.
The body does not arrive at final decisions through voting;
discussions and negotiations continue until the decision
is unopposed and it is thereby unanimous and binding as an
individual decision on each participant.

209
 However, I have to note that in a group some
individuals may be more experienced, wise and ambitious
than others. Those individuals wield considerable
influence and power. Although they discuss the matters
with council members and occasionally offering their
opinions at the meeting, they often leave the othe~ members
to talk and suggest what they think is appropriate. After
the body discusses an issue for days or even months, and
tire of discussion, the experienced persons knowing the
tendency of the members, make their suggestions. These·
suggestions are very often accepted because the decision
might be a combination of suggestions made by all members.
A faction or an individual who will not accept a
decision can only avoid commitment by leaving the circle
in protest. The maraka or the tukhum then discusses the
issue further and reviews the points raised by the protester.
Because one or more of the members of the council have
left the assembly in protest, they may adjourn the meeting
temporarily for a day or so, so that the protestors can
reconsider their position and accept the satisfied council's
view and join the group again. Often one or two members
of the council may go to the protestor(s) and ask him to
return to the meeting, so that a unanimous decision can be
reached.
The maraka and tukhum are thus both forums for acting
out important Pashtun virtues, such as courage, virility,
judgment, justice, independence and morality. A man's

210
influence and the respect shown him is made apparent for
when he talks, silence prevails in the meetings. On the
more fundamental level, these organizations confirm the
basic integrity and autonomy of men, and the basically
voluntary nature of the social contract among the Pashtuns.
They allow groups of men to arrive at joint decisions
without any participants' independence; they produce binding
corporate decisions about concerted action. This is done
without dissembling the structure of egalitarian balanced
segments through the introduction of anyone's right to
give commands. The following discussion will provide the
distinction between maraka and tukhum.

Maraka:
Maraka consists of two to ten or more individuals,
depending on the case's importance. If the conflict is
between two individuals, two families or between lineages
and the dispute is over a matter of unimportant injury
(such as a small injury on the head), or when the conflict
concerns a small amount of money (100 to 1,000 Afs.,
50 Afs. = $1.00) or in situations where the dispute is
based upon a small plot of land, (one-fourth or one-eighth
of an acre), or a house, the maraka will be called upon to
resolve the trouble. I call these types of cases minor
trouble-cases.

211
Tukhum (Pashtun Supreme Court):

The tukhum is a more powerful and more reliable

council of elders. If the number of the first maraka
members were two, the number of the members of the tukhum,
which takes root from the first maraka, will be eight
persons coming from different lineages even differsnt
tribes. The following formula represents the number of the
members of tukhum. T =2 (2M). T represents the number
of individuals in council called the tukhum, M symbolizes
the numbers of individuals (normally two) involved in what
is called the first maraka.
The judicial system of the Republic of Afghanistan
parallels the council of elders. The formal national
judicial system consists of three hierarchical~vels: The
-
Mahkama Ebtadaya (Primary Court), the Mahkama Morafea, -
(Secondary Court) and the Tameez (Supreme Court) (Aryubi
1958:31). All of the cases reported to the government
first go to the local Primary Court. If the case is re-
solved according to the parties' satisfaction there is no
need to refer it to the Secondary Court or Supreme Court.
When any of the parties do not accept the judication of
the Primary Court the party has the right to go to the
Mahkama Morafe~ (Secondary Court) and still if he is not
satisfied with the second decision he can have it referred
to the final legal authorities, Tameez or the Supreme Court.

212
 The local Pashtun legal system is similarly organized.
When a dispute arises between two individuals or two
political groups the maraka will be called upon. This
meeting is called awel maraka (Primary Council of Elders).
The attendance of the first maraka depends on the
importance of the case and the amount of property apd/or
damage involved. When a dispute occurs between two
families of the same lineage over, for instance, 1,000 Afs.
two elderly wise men of the village may be invited by the
parties involved to go to the scene and gather facts about
the case. They go and see the two parties involved and
after collecting sufficient information, they adjudicate
the trouble case. Now the litigants have the freedom
whether or not to accept the resolution proposed. If
either side does not accept the decision made by the first
maraka they have the right to reject the settlement. The
dissatisfied party calls the adjudication kazhah (deviated
or bent). They claim the Pashtun tsale has been mis-
interpreted. Now, they can call upon two other members
of the village council to judge the decision made by the
first maraka. These two individuals together with the first
two persons make a secondary maraka. The two new individuals
have the right to ask the first maraka the reason for their
decision and the pertinent tsale (code). Sometimes the
members of the first maraka themselves may feel incompetent
to resolve the case or they realize that the case is
getting more serious so they themselves ask for the equiva-

21)
lent number of the marakachian (members of the council)
and willingly make the second maraka.
On many occasions even the second maraka (Secondary
Court) may not be able to settle the dispute. In many
incidents because of competition between the parties even
a minor trouble case may pass through all three stages of
adjudication. If the second maraka decision is not
accepted by any of the parties involved or when the members
of the council themselves feel that the case is becoming
more serious and they are incapable of resolving it, one
or the other may call upon the tukhum. Tukhum is a type of
village council in which the members of different Zadran
lineages (khels) and other tribes are involved. Sometimes
the tukhum includes the members of both Pashtun moieties,
the Kerraor Keryani 4 (or Durani) and the Ghelja or Ghezai.
The term Kerra in Pashto means the inhabitants of the
mountains. The Ker~a moiety consists of Sabari, Manduzai,
Tani, Mangel, Zadran and Gurbuz tribes. Ghelja includes
Ahmadzai, Tuta-khel, Suleiman-khel, Ander, Kuchis (nomadic
tribes). Many other members of these two moieties live
in other provinces such as Kandahar. The Ker~a moiety
belongs to what is called Spean Gund (White ~loc) and the
Ghelja belongs to Tor Gund (Black Bloc).

Tor and Spean Gunds:

The discussion of Pashtun dichotomy of Tor (black)

and Spean (white) Gunds (blocs) seems relevant here. All

214
of the Pashto speaking people in the area are divided into
2 large blocs called Spean Gund (White Bloc) and Tor Gund
(Black Bloc). The split is not based upon the concept of
race or skin color. The origin of the dichotomy is explained
in myth: several centuries ago a big jirgah (council of
elders) representing many Pashtun tribes was held in one
of the villages in Paktya Province. The members of the
jirgah were discussing a tribal trouble-case. Suddenly,
the argument arose as to whether there were more white
feathers or black feathers on a mockingbird. The members
of the council who favored the former position that there
were more white feathers - were classified as Spean Gund
(White Bloc) and the members who favored the latter
position - that, there were more black feathers - were called
Tor Gund (Black Bloc).
A second view attributes the origin of this dualism
to the British rulers. Several of my informants told me
that "This nonsense idea was brought to the scene by
Engrazan (the British People) in order to create conflicts
and tensions between the people and, therefore, based upon
their famous formula of "divide and rule" makes it easier
to run their colonies without many difficulties."
Despite the fact, in a decision made by Tukhum which
includes a great number of individuals possibly from both
Blocs (Tor and Spean Gunds)the Spean Gund decision is more
reliable and the presence of Spean Gund members is more

215
important (see cases 11, 14 and 15). This investigator
believes that since most of the member tribes of the Spean
Gund category live in the mountainous and marginal areas
and have not had as much contact with urban centers as the
Tor Gund category have had, they have kept their way of
life relatively unchanged and their traditional and,
customary laws untouched. They also are probably more
traditional than the other bloc.
According to my informants an ideal tukhum (Pashtun
local Supreme Court) may include eight or more individuals.
They are usually invited from the following important
Zadran lineages (khels) by the parties in conflict. One
person from Yahya-khel, the second from Dari-khel, the
third from Mazi, the fourth from Ziawo Din (from Tangi)
the fifth from Malek Din (also from Tangi),the sixth from
Zani-khel, and the seventh and eighth individuals both come
from the village of Almara. Each member represents a large
lineage.

Spean Saro (Men of the truth):

Every tukhum must include at least two men from

Almara. Members of the council of elders from Almara are
called Spean ~, men who tellthe truth. Such a group of
men still live in Almara.

Procedures for the Settlement of Disputes:

There are three ways to call upon the maraka or the
tukhum:

216
 1. When there is no £ighting going on, but the threat
o£ con£rontation is felt and/or the contestants themselves
want a resolution to the conflict, they send a messenger
or a carrier (lerana) to the members of a maraka to come
and settle the trouble-case.
2. When there is a serious confrontation re~ulting

in injury and a fear of £ighting or warfare is felt, a

group o£ mediators £rom di£ferent lineages and adjacent
villages or tribes will meet at their volition and come to
the place where the trouble has arisen. First, an
endeavor is made to end the fighting and bring about a
truce. Then they begin the talks with the both parties
to resolve the con£lict.
J. Extreme differentials in wealth and/or power
between offender and offended preclude any attempt by the
latter to avenge himself. In such a case the offended is
likely to take a sheep, and together with two or three of
his close relatives will slaughter the animal in front of
the powerful man's hamlet. A hamlet is a fortified small
village consisting of, for instance, four to ten households,
often a kin group. The action of slaughtering an animal
in front of an individual's hamlet is called nanawat. This
is an act of taking asylum in an individual's house and
asking for help and, or asking for a pardon. This protest
is carried out under a cloak o£ secrecy because the owners
o£ the hamlets hope to avoid such spectacles and so try to

217
prevent them. Most often people do not want to get involved
or take responsibility in such cases, because when an
animal is killed in front of someone's hamlet the owner of
the settlement is morally and customarily obligated to help
the "poor" plaintiff in whatever manners and measures he
can.
After killing the animal the offended informs the
owner of the hamlet of the details of the trouble-case and
tells him what kind of help he needs. In the morning the
animal is cooked and the powerful man invites his kinsmen
and other villagers to eat the animal and share the respons~

bility with him if there is a need for it. The owner of

the hamlet is obligated to start negotiations with the
offender party and to resolve the dispute on the basis of
Pashtuns' tsali or Layar or "Pashto" (customary laws and
codes) •
The first two stages are very important. When the
maraka or tukhum conduct their investigation as soon as they
arrive at the village, they ask both sides about the nature
of the problem. Both parties pretend that nothing is amiss.
In situations where the maraka members are invited to come,
the council will question both sides as to why they sent the
lerana (messenger) to them. Since there is likely to be no
reply to that question, the time has come for both parties
to sit and start negotiations.
After the meeting the members of the council gather
as much information about the case as they can. They

218
interrogate litigants. They ask members of the village
for evidence. They examine the injured person if it is an
injury case. They go to the scene if it is a trouble case
involving land or a division of a mountain forest. After
collecting the information they return to the village to
make a decision. If the trouble was not serious and the
damage was minor, they adjudicate the case through mediation.
In this case there is no need to ask for a baramta
(guarantee) from the parties so that they might be forced
to accept the decision made by the marakchian. When the
trouble is serious and the damage great, arbitration and
intermediary procedures are llsed to resolve the conflict.
Swartz, Turner and Tuden (1966:J6) have defined the three
processes as follows:
If the decision of the third party
~araka and tukhum~ must be accepted,
we may speak of 'arbitration,' with
the implication that the decision of
arbitrator(s) is underwritten either
by strong legal or strong religious
sanction. If negotiations are conditioned
on voluntary acceptance by both con-
testants of the settlement proposed by
the third party, we may speak of'rrediation:
Mediation involves the sustained inter-
vention of the mediator{s), who must be
concerned with more than the legal issues
at stake and must utilize a variety of
pragmatic techniques - ranging from
friendly advice and pressure to formula-
tions of new terms - to bring about a
reconciliation of the interests of the
opposed parties .•.
In other situations we may speak of
'intermediaries' rather than mediators -
when neither party will accept the third
parties claim to be impartial. In such

219
 an instance the possibility of an
outbreak of overt hostility is so
strong that negotiation has to proceed
between intermediaries who represent
each party, since a face-to-face con-
frontation of the faction leaders is
not possible or practical.

Mediation:
When the trouble case is unimportant, damage'and
property involved are minor, the marakachian (mediators)
without asking the contestants for a baramta (guarantee)
adjudicate the case. A baramta could include a piece of
property which could be worth from 20,000 to 100,000 Afs.
or more depending on how important and serious the case
is. A baramta (guarantee) could be made in cash or in kind
such as some pieces of furniture, an Afghan rug, rifle and
pistols. The baramta is held so that when the marakachian
(arbitrators) make their decision it will be carried out.
The mediators are very often elderly members of the
village council, and may include imam of the mosque and
one or two holy men from within the village or neighboring
villages. Mediators utilize a variety of pragmatic
techni~ues such as friendly advice, asking for a spirit of
forgiveness and tolerance. The presence of holy men is
intended to encourage the plaintiff to forgive the offender.

Arbitration:
Another type of adjudication of disputes is arbitra-
tion. Whenever the maraka or tukhum is convened for an
important trouble case the arbitrators ask both sides for a

220
baramta (a guarantee) in order to put pressure on the
contestants to accept the decision made by the council.
Before the council members make their decision they collect
the baramta (guarantee) and ask for a wak5 0r authority.
A wak is a right and authority given from the litigants
to the marakachian (members of the village council~ to
adjudicate the trouble case in whatever manner they see
fit. After the ~~ was granted the decision was made by
the members of the councili if the party refuses to accept
the decision, he loses the baramta (guarantee).

Hallal Pakhawal (Slaughtering and Cooking):

Allor most of the arbitrators invited might be from

other tribes and thus are not able to provide food for
themselves while they are in the process of dispute settle-
ment. The reasons for this varied. Men in the villages
do not cook foodi there may not be restaurants in the
villages; the town or city might be too far to commute to.
Therefore, the litigants are the only people to take the
responsibility of feeding the marakachian (members of the
council).
It is interesting that on the first day of hallal
pakhawol (slaughtering and cooking) none of the parties
involved wants to accept the responsibility for feeding the
arbitra~ors. The reason for this is competition and lack
of preparedness for providing the guests with proper food
and shelter.

221
Hospitality:
A peculiar and important element of Pashtun culture
is their hospitality. According to Muhammad Ali, "Pashtuns
are considered to be the most hospitable people in the
world." (1965:23). A Pashtun, however, poor, feels himself
delighted and honored to receive a guest. All persons,
irrespective of rank, religion or nationality, are entitled
to benefit from this practice.
Hospitality involves a set of conventions whereby
the person who is on horne ground has an obligation toward
the outsider to incorporate him into the local group
temporarily and to be responsible for his security, and
provide for his needs. The obligation is brought into play
by the visitors presenting himself in the alien setting.
Accordingly, a stranger on the road who passes close to
someone who is having a meal will be offered food, someone
corning to a village will be greeted and helped by residents,
a friend making his appearance will promptly be made
welcome. In return, the guest is obligated to recognize
the authority and sovereignty of the host over property and
persons present. In this host-guest relation, any single
encounter is temporary and the status thereby reversible
and reciprocal and hospitality is thus easily an idiom of
equality and alliance between parties. A consistently
unilateral host-guest relationship. on the other hand,
entails dependence and political submission by the guest.

222
 Barth, in relation to the Swat Pathan system of
hospitality tells us that:
In the traditional pattern of organization
in Swat, chiefs maintain positions of
leadership through hospitality in their
men's house, expending wealth in rice, etc.,
in return for political prestations of
submission from followers, who consume the
rice. The followers thus obtained are used
to protect, and preferably expand the trans-
port and sale of rice in the grain markets
of Peshawar, one hundred miles distant.
This kind of transaction of perishable for
imperishable wealth presents the individual
chief with a dilemma of choice, demanding
over-arching principles of evaluation of
hospitality, might and wealth relative to
each other. Simultaneously, the native
ruler offers some degree of security of
title to land for a chief in return for a
reduction in his autonomy (Barth 1966:16).
A few chiefs started deviating from the old pattern
as early as the late 1930's; they gained greatly in wealth
but lost their political following by discontinuing their
men's house feasting. They lost their autonomy through
having to rely on the ruler and his power for the protection
of their estate; however, they tended the estate of the
chief, from which the wealth in rice derives, in a circle
of conversion. The values and strategic circumstances
underlying this institutional complex have been described
in this way. A high value on autonomy, might, wealth and
hospitality in a situation of anarchic rivalry between
chiefs who compete for clients will generate this and a
number of other characteristic patterns of choice. Barth
has said that:

223
 In a situation without alternative market
outlets for rice, there was indeed no
alternative course whereby any separate
one or several of these values could be
effectively maximized. Since the initial
pacification of the lower Swat Valley in
1895, and particularly since the emergence
of a centralized native state in the rest
of the valley, and the construction of a
road network in the 1930's, a real alterna-
tive has been present, to use chiefs in ,
delegated positions of administrative
prominence, so few suffered a visible loss
in might (Barth 1966:16).
Barth's analysis and discovery of the Pathan system
hospitality and its functions with regard to the Swat
Pathans' political and economic system seems logical and
well argued. It is unfortunate, however, that his hypothesis
seems applicable only among Swat Pathans, and does not
hold among Pushtun ethnic groups in Afghanistan. First of
all Pushtuns in Afghanistan do not cultivate enough rice
to cause marketing problems. Second, Barth's whole theory
of hospitality among Swat Pathan circles around political
submission and economic transactions. He disregards social,
psychological, geographical and historical elements. In
a region such as Western Pakistan, the present Pushtunistan,
and East and Southern Afghanistan, which for the most part
are mountainous areas. Travel is difficult between villages
and towns, particularly during the harsh and snowy winter.
Few roads and little transportation were available even
thirty or forty years ago. Moreover, looking back at the
history of Afghanistan, the capital of the country and the
major cities were distant from the area. It would

224
 occasionally become necessary to go to those major centers.
If the Pushtuns had not developed that kind of system of
hospitality, their lives would have been largely in danger.
To sum up the main point, the Pashtuns have developed
their system of hospitality not only because of its
economic function in their political system, but also as
a means of adaptation to their ecological, social,
historical and physical environment. They have developed
this system for their survival: for fear of dying from
cold, snow, hunger and danger from brigands and predators.
Let us return to the question of providing room and
board for visiting arbitrators. The responsibility of
providing food and accommodation for the arbitrators is
decided on the first day by pacha achawel (game of chance).
In the lottery the parties involved ask an impartial
individual to write down the names of two persons, each on
a single piece of paper. One name from party A, one from
party B, The papers are then folded and put in a hat and
shaken. Still another impartial individual is asked to
pick a paper from the hat, The writer reads the name, If
the name reads A, B loses ani thus he has to host the aroitrators,
If no literate person is present at the time, the
parties use an alternate method of chosing a "host," This
time both sides ask an impartial individual to take 2
clumps of mud and place a different object inside of each,
perhaps a leaf or twig. Each mudball is molded identically.

225
 The mudballs are then placed in a sack. Next the parties
are asked who wants which one - leaf or twig. Then a last
impartial individual is asked to pick out one ball from
the sack. If the chosen ball has a leaf and belongs to
A, then B looses-
The party who loses the game will be responsible for
the first turn. This particular type of food provision for
the council members is known as katow 6 (food preparation).
When members of the village council adjudicate the
trouble case through mediation, the contestants provide
inexpensive food. They may slaughter four or five chickens
and may cook about sixteen or twenty pounds of rice together
with five or six pounds of green beans. This type of dish
is called dendaki and it is very common among the tribesmen
of southern Afghanistan. Sometimes about ten pounds of
beef is cooked instead and a special soup is made and served
with rice.
Whenever the second maraka is convened or the tukhum
is invited the case is seen to be very important. The
serious and important trouble cases are homicide and inter-
tribal-warfare, or a dispute over the division of mountain
forests and common land. In these situations many people
are involved and the competition between the contestants is
great. Therefore, the parties may begin with slaughtering
goats and sheep at the beginning of the settlement process
and might end in slaughtering cows and oxen as the process
proceeds. An informant who was involved in the process of

226
arbitration told me that the parties who were involved
first began to slaughter one or two sheep for the council
members and finally the competition increased to the point
that contestants were slaughtering several oxen upon their
turns. As a result the whole village was fed for several
weeks. In addition, a lot of meat was fed to the dDgS.
All this was done because one contestant might defeat the
other by showing himself more hospitable.
The nature of the role of the arbitrators and
mediators and their popularity in society necessitates
their impartiality. When members of a maraka make their
decision they announce it to both parties. If it happens
that one of the parties is not satisfied with the settle-
ment, thus losing the baramta to the other party, they
have two alternatives: (1) they can ask for the second
level maraka which includes the first maraka, or (2) they
can ask for an oath by the members of the first maraka to
swear to God that they were honest in their judgments and
decision. With the first alternative, the same number of
new arbitrators is chosen. In the second alternative, the
number of persons who might be asked for an oath varies
from two to ten. It has been the custom among the Pashtuns
that when a member of the maraka is asked to take the oath,
the party is obliged to pay 1,000 Afs. ($1 = 50 Afs.) to
each individual who v:qS a~ xed to swear.
When the arbitrators filake their decision and it is
accepted by the litigants the baramta (guarantee) is

227
returned to the owners. With the return of the baramta
(guarantee) the trouble case is settled and the contestant
groups are no longer enemies and, academically the case
becomes closed.

Khalat:
Before the case becomes officially closed the parties
involved are traditionally required to give some money to
each arbitrator. This money is called khalat. On many
occasions when the parties are pleased with the arbitrators'
adjudication the contestants provides the members of the
council of elders with expensive turbans which signifies
good manners and respect on the part of litigants.
Imams of the mosques and other religious people who
have read the figh (jurisprudence) and know Islamic shari~
believe that the amount of money given by the parties to
arbitrators as khalat constitutes bribery and/or selling
of their efforts in the process of adjudication and there-
fore. forbidden by Islam. My research indicates that the
process of adjudication of many trouble cases has continued
for as long as a year. The same arbitrators usually stay
with a case from beginning to end. This can involve
considerable sacrifice of time and income when trouble
c'ases last long: and in some cases frequent traveling betv.een
cities can involve considerable expense. In addition, of
course, they are prevented from working their own farms.
To help defray these expenses the khalat is given. Payment

228
can be somewhat unpredictable because the arbitrator is
not supposed to ask for the khalat but must wait for the
contestants to initiate payment. I believe a danger exists
in the event that they do not receive the khalat. If the
arbitrators continue their arbitration without having anyother
sources of income they may become susceptible to br,ibery.

Intermediary:
The use of "intermediary" is the third type of dispute
settlement. Whenever the trouble case is serious and when
either the hostile situation does not permit the litigants
face-to-face negotiations or the two sides cannot agree on
the impartiality of the mediator and arbitrator each side
chooses their own representatives from the members of the
council of elders. In this case each party tries to select
honest, popular and wise intermediaries. While each group
of intermediaries represents one side and each group tries
to win the game, both groups are still constrained by
Pashtun customary laws and codes. As with mediation and
arbitration, intermediaries begin by asking for baramta
(guarantee) from both sides. After a thorough appraisal of
the overall case they come to a decision. Anyone who does
not accept the decision loses their baramta (guarantee)
and according to "pashto" or Pashtuns' nerkh (literally
means customs or norms) the aberrant side would be called
kabergen (arogant or offender) and labeled as one who does
not abide the norms and the laws of their own society. The

229
kabergen party also may lose the support of marakachian
(council). In such cases the maraka is adjourned and the
baramta goes to the opposite side.
This procedure for the adjudication of trouble cases
is similar to that of hiring a lawyer for a case which is
referred to a state court in Afghanistan or in Western
societies where the opponents do not want to resolve the
case through face-to-face negotiations. Two differences
should be pointed out however: (1) there is no pre-
determined fee for the intermediaries although at the very
end of the dispute settlement they may receive some khalat
and (2) adjudication is done by intermediaries and not in
a court by a judge.
The following trouble case from the outset seemed to
be unimportant but became a very serious trouble case. The
case passed three stages of the Pashtun courts: the awel
maraka (primary court), the dwawom maraka (secondary court),
and the tukhum (supreme court).

Case No.4: Conflict Over a Hen

Place: Mandozi
Date: 1962
There was a buggy driver, who had a horse. Whenever
he was at home he would sit near the place where he kept
his horse and would provide the horse with grain and hay.
His neighbor had a few hens, one of which used to come to
the horse's feeding trough and scatter the hay and eat the

230
grain.
One day when the owner o£ the horse saw the hen once
again start to scatter the hay and eat the grain, the man
caught the hen. He did not kill the hen but pulled its
£eathers off and then returned it to his neighbor. There
were no men in the house at the time but a few women were
sitting near the main gate of the hamlet. When the women
looked at the naked hen with surpise, the women asked why
he did not kill the hen. The man answered with anger that
their husbands will face the same fate. The object of
defeathering the hen was to insult the owners.
When the men o£ the household came horne and saw the
hen, they asked the women what had happened to it. The
women did not hide anything and told the whole story. The
men wanted to retaliate in kind. A quarrel ensued and the
parties involved were advised to call upon a maraka to
adjudicate the dispute.
Both sides agreed that the case should be heard and
adjudicated by the council members of Almara. They named
two ~arakachian7 (council members) and send them a lerana
(messenger). The two men carne to Mandozai. Then these
marakachian asked for a baramta. The baramta was two rifles
for each side. After the baramta was collected the opponents
took turns to provide food and service for the council
members while they were discussing the issue. Both sid~s

were slaughtering two or three chickens and cooking about

six or eight pounds of rice at a turn. The arbitrators soon

231
realized they would be unable to resolve the disputants
differences so they asked that a second maraka be called
upon. The disputants agreed and sent a lerana (messenger)
again to Almara to ask for two more council members.
With more guests the competition between the disputants
became very tense. Each time the members of council were
invited to one of the parties' house a sheep would be
slaughtered. After several weeks the maraka could not find
a solution to the trouble case to satisfy both sides, there-
fore, disputants were asked to call upon the tukhum.
Messengers were sent to invite the tukhum (eight
persons). Now not only were two families involved in the
trouble case, but two lineages were in competition with the
arrival of the tukhum each side forced to slaughter oxen at
each turn. A part of the meat was served to the guests
and families, the remainder being destroyed. The tukhum
could not propose such a resolution to the case to please
both sides.
At this time an unknown person reported the case to
the government because of the fear that the two groups
would fight. Consequently, many people were jailed from
both sides. The case was referred to the state secondary
court (Mahkama Movaf! ) with no success. The judge invited
the local famous fogaha (jurists) to look into the case.
The fogaha (jurists) could not suggest a satisfactory
resolution either because none of these adjudicators could
find such a case in figh or in Pashtuns"j codes.

232
 When the jailed disputants heard that neither the
tribal councils nor the judges and famous local jurists
could settle the dispute, having spent so much on enter-
tainment and frivolities, reported to the government that
they solved the problem through negotiation among themselves.
When the governor got the message he ordered the release of
all those involved in the trouble case.

Pashtun Tsali for the Settlement of Trouble Cases:

There are many different categories of trouble cases

and for each category the Pashtuns of the Suleiman foothills
established certain rules on the basis of which wrongs are
penalized. The punishment for wrongdoers is not imprison-
ment or fine. They are of different types such as ostracism,
nenawat (going to someone's house and asking for an apology
for his offense), giving pour and sharm (giving certain
amounts of money in addition to the cost of damage inflicted
and taking one or two sheep to the offended house for the
purpose of saving his face respectively) and other social
punishments such as making known that the offender is a
criminal to the community. Translati~ of pour and sharm
will be discussed below. The Pashtuns' common tsali
(customary laws or codes) for resolving disputes are as
follows:

Tsale for Resolving Theft Cases:

Theft is considered a grave crime to the Pashtuns.

233
There are several types of theft such as that from an
individual's house, garden, or the mountain forest. The
most serious form of theft is from someone's house and is
considered an offense to one's own house and honor. An
offended group that cannot defend their house and keep it
safe from thieves is regarded as weak and timid. When a
family succumbs to such threats they lose face in the
community.
A thief generally steals at night or in the absence
of people, therefore, according to Pashtun tsale (code) a
witness is not necessary. A thief could be freed if he
takes an oath that he has not stolen anything. When a
thief confesses that he has stolen, he is obligated by the
Pashtun tsale (code) to return the stolen good(s) to the
owner as well as to pay double the cost of the article(s)
stolen, either in kind or in cash. The additional amount
is known as pour (indemnity for wrongdoing) in Pashto. The
thief is also obliged to pay the sharm (shame) which is one
sheep and 500 Afs. ($1 = 50 Afs.). The amount of pour
paid is based on the severity of the offense as an atonement.
The sharm is paid so that the victim's reputation (face)
could be saved. The victim slaughters the sheep and invites
the villagers to share in a meal with them. The thief,
together with his close relatives, the members of the village
council, and the village imam also accept the invitation
and the thief offers a public apology for his offense and
wrongdoing.
 When a thief confesses but later disagrees with the
owner as to the amount stolen, the owner can receive an
amount greater than the worth of the goods stolen. For
example, if someone was robbed of his rifle, radio and
1,000 Afs. and the thief when captured only confesses to
theft of the rifle and money, the owner could clai~ a
rifle, a radio, two rugs and 5,000 Afs. The robber is
obligated to pay for the goods because he is a confessed
thief. When a thief is killed in the act of theft, no pour
(indemnity for wrongdoing and revenge) or sharm (shame)
is required from the killer. According to Pushtun tsale
or Layar (customary law) it is self-defense and so is
permitted.
When something is stolen by a thief not known to the
victim, the victim may make it known to the villagers that
he will pay a reward, for instance, (1,000 Afs.) to the
individual who identifies the thief. This money is called
za~ (reward) in Pashto. The person who knows the thief's
identity in secret may go to the victim's house and identifY
him. The person who reports the thief to the victim also
tells the owner of the stolen articles that if the thief
took an oath that he had not had stolen anything, then he
will return his reward money. The victim must look into
the case carefully for a motive to the crime. He looks
into his own deeds and sees if he offended the accused in
any manner before. Did he steal anything from him? He

235
asks whether or not the accused was in the village on the
same day that the articles were stolen. If based upon
these assessments the victim thinks that the suspect is
truly guilty and that the reporter is right in his accusa-
tion, he informs the tour (accused) via an intermediary to
return his property with its pour (indemnity for wr~ngdoing)

and sharm (shame). The suspect may return the property or

he may refuse or deny (hay toba) the accusation. If he
does deny guilt according to the theft tsale (code) the
victim has the right to ask the accused to take an oath of
innocence. If the tour (accused) does so, he becomes speen
(innocent). If the stolen property has great value, for
instance, more than 20,000 Afs., the tour (accused) and a
close relative (such as a father or b10ther) must both take
an oath of innocence. No pour (indemnity) and sharm (shame)
is paid to an accused who has proven innocence. Because
Pashtuns believe that when an individual, who was in fact
innocent, is asked to take an oath of innocence, it is the
accuser's sin. Part of the accusation and the negative
effects of the swearing return to him.

Oaths and Ordeals:

Another way of peacefully resolving disputes is through
oaths and ordeals. Both oaths and ordeals involve appeals
to supernatural power.

236
Oath:
An oath is the act of calling upon a deity to bear
witness to the truth of what one says. The most valid and
solemn oath that may be taken by a Muslim in courts is upon
the name of Allah. (Ember and Ember 1977:356, Levy 1971:
258; Roberts 1969:169). But many people in Afghanistan
~

and other Middle Eastern nations swear by the Quran, shrines

of local saints and even by their own father's tomb. Islam
enforces a strong sanction against taking oath particularly
if the oath is invalid and false. Requesting that a
Pashtun take an oath is the same as killing him, for his
honor is greatly jeopardized. For a Pashtun death is more
desirable than life without honor. There is a special term,
serprikawol (to take off one's head), in Pashto. In order
to make this act harder and Show its importance to the
public, the Pashtuns have a special rite of swearing for
the person who takes the oath. They believe that the sur-
face of the earth is unclean due to the everyday contact
with the liars, murderers, thieves, adulterers and other
criminals. Therefore, a hole is dug one half meter deep
and the Quran laid in it, the swearer is than asked to make
a ritual ablution. Finally, he puts his right hand on the
Quran and swears by the name of Allah that whatever he says
is just and truth. Pashtuns believe that taking a false
oath may bring about the following:
1. he/she becomes poor.

237
 2. his/her opinions and saying become ineffective.
3. the color of his/her face and body becomes pale
and ugly.
4. his/her land loses its productivity.
5. his/her livestock loses its productivity and does
not grow naturally.
6. his/her small children die very often.
The act of swearing should not take place either
within the village or in the katsa (farm). The villagers
believe that if a false oath is taken within the village it
may cause a collective illness in the village. Also, when
an oath is being taken in the katsa (farm) it is believed
to reduce the productivity of all the householders' land in
the community. The swearer takes the oath in the legad
(dry river bed) between lower and upper Almara.

Tawda (ordeal):

Another way of peacefully resolving disputes is tawda.

A tawda (ordeal) is a means used to determine guilt or
innocence by submitting the accused to dangerous or painful
tests believed to be under supernatural controls (Roberts
in Ford 1969:169-172). It was a very common practice among
the villagers and tribesmen of the sou"~ and southeastern
Pashtuns of Afghanistan. The Pashtuns believed that the
innocent individual who was accused of being a.thief or
murderer does not burn while being submitted to the boiling
water or hot iron. There are two different types of tawda

238
(ordeals) in common use among the Pashtuns: the Zadrans'
and the Tanis.

Zadrans' Tawda:

1. A piece o£ iron is cut, which should be equivalent

in weight and in the area to a ghajari coin. One ghajari
~

coin weighs one dollar coin and its area is almost the
same as one dollar coin. The iron piece is called kyar in
Pashto.
2. Seven lines are marked on the earth. The distance
between each line should be about two-thirds meter and each
line should be marked by a pillar for seven steps. Seven
is a symbolic number in Pashtun cosmology.
3. The kyar (iron) should be put in the forge until
it becomes red.
4. Seven pieces of paper sheets equal to the area
of the kyar (iron) should be cut and should be put over the
accused person's right hand.
5. Then the accused is asked to walk seven steps on
the lines marked while holding the kyar (iron) in his hand.
When he takes his seventh step he is permitted to throw the
piece of iron away. Before the accused submits to this
test he takes an oath of innocence. The accused is not
allowed to carry any amulet or sacred artifact from Mecca,
because the people believe that if an individual carries
such things with him, he will not burn and he will become
fire-proof. His hand is bandaged and he is led off to spend

239
the night under guard. In the morning his hand is un-
covered and examined. If there are blisters, he is guilty.
If the individual succeeds in proving his innocence by
showing an unblistered hand, he is entitled to receive a
pour (indemnity) for wrongdoing of 500 Afs. and a sharm
(shame) of one sheep. In addition the accuser is ~equired

to ask for an apology from the innocent person in public

for his falie accusation.

Tanis' Tawda:

When an individual is accused of theft and he did not

accept the charges the maraka (council of elders) will ask
him to take an oath which will be accompanied with tawda
(ordeal). All components of the tawda will be measured
and tested carefully by the members of the maraka (council
members).
The tawda (ordeal) among the Tanis is composed of:
(1) five paws (1 paw =1 pound) of clean water. Water from
the nearby spring is used to insure cleanliness. (2) A
bunch of tsare (oak) wood, 30 centimeters in length. One
marakachi (member of the council) will put his left middle
finger tip on his shoulder and another individual will put
the pieces of wood inside his hand till there is no space
for more wood to fit the measure. (3) The water should be
poured in a new ceramic pot. (4) Three round rocks which
should weigh about 1 paw each (1 pound) also should be put
in the water.

240
 The members of the council either designates a fire-
place or build one. within a room or walled area to avoid
the wind. A fire is set with the specific amount of wood
mentioned above. When the wood burns completely they ask
the accused who was sworn in before to pick up the three
stones from the boiling water. His hand should be ,bandaged
after which he is led off to spend the night under guard.
In the morning his hand is unbandaged and examined. If no
blisters are found on his hand he proves his innocence. In
such cases the accused is entitled to receive a pour
(indemnity) of 500 Afs. and a sharm (shame) of one sheep
from the accuser. The accuser is also obligated to go to
the innocent's house and offer an apology for his
accusation.
Several informants have reported that both tests were
very common among the Mangel, the Tani and the Zadran
tribes until very recently. But they believed increased
education has brought about a drastic change among these
tribes in that ordeals are no longer practiced.

Case No.5: Theft

Place: Tani
Date: 1950
About 27 years ago, 13 persons were accused of
committing a theft in Tani. A thorough investigation of
the case was made by the village council. Based upon the
decision of the village council. all 13 individuals were

241
asked to submit to tawda (ordeal) to prove their innocence.
The Tani tawda was ordered and one of the council members
supervised the arrangement of the tawda. An informant who
is now a member of the village council told me that all of
the 13 individuals were burned when they picked up the
rocks while four were in fact innocent. The villag~rs

believed in those 4 individuals innocence. The judgment

and decision of the maraka (council members) was based
upon a mere accusation by the offended party. Those four
innocent individuals in the presence of many villagers and
council members, criticized the validity of the test. The
council members as well as the other villagers were gener-
ally convinced that the test was invalid and thus was
discarded.

Case No.6: Theft of the Bull

Place: Almara
Date: 1954
In the summer of 1954, a bull was stolen from a house
in Almara. The case was referred to the council of elders
and an individual from the village was accused of the theft.
The suspect claimed innocence. According to the Pashtun
tsali (customary laws), he was obligated to take an oath and
submit to the Zadrans' tawda (ordeal). Based upon the
adjudication of the maraka (council of village) the Zadrans
tawda (hot iron piece) was prepared for him. The Dwa
Weeshta creek was named as the place for the tawda (ordeal)

242
and oath taking. After his ordeal several blisters were
found on the accused's hand. When the suspect's hand was
inspected he himself also acknowledged that he was the
thief.
This custom of taking an oath and submission to an
ordeal is dying. Until very recently the villager~

believed that only the criminal burns when the tawda (orderu)
is carried out. The theft case (Case No.5) in Tani and
many other such exceptions to the tawda (ordeal) proved that
it was not a valid test. Therefore, the test has been
losing its popularity as a means of adjudication. The
higher the level of public education the more they were
convinced that anyone who touches something hot will burn.
This custom is taking another form now. The person
who is "accused" of a crime is called tor (charged of a
crime) and an "innocent" individual is called spean. When
an individual becomes accused of a crime such as theft, the
accuser, based upon the Pashtun customary laws, has the
right to ask a close relative, a spean (an innocent) of
the tor (accused) to take an oath testifying to the
accused's innocence and that he has no knowledge of the
item that was to have been stolen. The accused is supposed
to swear that he is not guilty.
I believe that another important reason for this
change in the form of oath taking is due to the influence
of Islam. Islam and the Pashtun tradition both put a great
deal of importance on taking an oath.

243
Case No.7: Missing Merchandize
Place: Paktia Province
Date: 1964
A man (A) put some of his commercial goods in another
man's (B's) truck while he himself was with the driver on
the way toward his home. A did not inform the driver
... (B)
about the goods in the truck because he was selling them
illegally and did not want to pay the tax. The truck
arrived at A's house near town and A took his baggage and
stuff and went to his home. After several months A came
to the driver who happened to be the owner of the truck and
told him that a portion of his commercial stuff worth
30,000 Afs. was missing. The "poor" truck owner became
outraged and told A that first of all he diu not inform him
about the goods in the truck and did not pay anything for
carrying it so how could he say that the merchandise was
stolen and that B is responsible for it. One day while the
truck driver was on the road, A and his brother threatened
the driver with their rifles and forced him to stop the
truck. The driver was taken to A's village. When the
driver's brother got the message, he came to A's village.
As a guest he was well cared for with warmth and was respect-
fully served a good meal. The village jirgah (council) was
convened and they discussed the trouble case with the driver's
brother. The driver's brother told the jirgah that he did
not know anything about the loss of the merchandise. A asked

244
him that he but not the driver shoUhl swear that they did
not take the goods or else pay the value of it which was
)0,000 Afs. A knew that the driver's brother, because of
his prestige in the community, would not take the oath.
The driver's brother reacted as expected, but told the
jirgah (council of elders) that he did not know anything
~

about the case. The jirgah,after days of discussion,

finally made their decision. The owners of the goods (A)
should receive )0,000 Afs. after taking an oath that they
were just in their claim or 15,000 Afs. without taking an
oath. The decision was announced to B and he opted to
give A 15,000 Afs. The case was settled.

Tsale for Resolving Land and Mountain Trouble Cases:

Arable land and mountian forests are both considered

valuable properties for the Pashtuns. Arable land is
valuable becuase of its scarcity. Mountain forests are
important because of its wood for lumber trading.
Many polemical confrontations over the ownennipafland
and forest were reported and I have witnessed several
trouble cases of this sort (see cases numter ), 7, 8, 9,
10 and 28). Therefore, the Pashtuns have developed special
tsali (codes) for land and mountain trouble cases.

Land:
Whenever a dispute occurs over a piece of land the
maraka (village council) will get together on their ovm
volition or they will be informed by a messenger sent by
one or both of the disputing parties. The maraka questions
the parties about the nature and the reason for the con-
£rontation. At this moment both sides would claim that the
land is theirs and that they have inherited it from their
fathers. In order to £ind out to which party the land
really belongs, the council of elders begin their inquiry.
The maraka may search for in£ormation as to who received
the last tspora (yields). They ask the people within the
village and those o£ the adajacent communities. Even i£
most people questioned for instance, say group A had the
last tspora (yields), the members o£ group B may still
declare their rights and claim at least a part of the land
or the whole field. In such a case if group B claims the
right of ownership over the whole land or a part of it and
assuming group A denies their claim, based upon the Pashtun
land tsali (codes) members of tribe B are obligated to take
an oath in the presence of the council members and other
villagers. The number o£ the people who may be asked to
take an oath depends upon the value and area of the land.
There are two types of oath taking in cases involving
land: (1) in a situation where two parties (tribes A and
B) claim the right of ownership over a small part of an
arable and ferti~plot of land, such as a claim covering
one fourth of 20 jaribs arable land, an old and higher
status member of the claimant party is required by Pashtun
tsali (codes) to take the holy QUran under his arm and walk

246
across the portion of the land they claim is theirs. In
Pashto this type of an oath taking is called bread (carrying
holy Quran under the arm). In situations like this the
oath taker is not obligated to swear to God's name that
their claim to the land is just. The individual merely
carries the Quran under his arm and crosses the po~tion of
land which is claimed. The Pashtuns, however, consider
this to be an act of ser prykawol (cutting of someone's
head off by the opposing party).
In a situation where one party claims a big part of
another party's land, for instance, one-half of 100 jaribs,
or the whole farm due to its value, then seven persons from
the claimant group are required to take an oath by the
maraka (council of elders). After the oath is taken the
land belongs to the swearers.
If the land is nonarable and no evidence is available
to indicate who harvested the last yield, equal numbers of
elderly individuals with similar social prestige from both
sides are obligated to swear to God's name that their claim
to the land is just. Upon the oath, the maraka will divide
the land into two equal parts. This reflects strongly the
PashtlJ.n belief in compromise which is embodied in the
expression sulha P.Q. nimayi, which literally means "peace
is in dividing a given property in half."
Very often in less important trouble cases, such as
a minor damage to a rice field or cutting down an apple

247
tree, witnesses help in conflict resolution. The maraka
may ask the witnesses about the incident and then, based
upon their information, make a decision.

Case No.8: Conflict Over a Piece of Land

Place: Paktya Province
Date: 1952
A piece of nonarable land was located between the
arable lands owned by tribe A and B. Tribe A and B both
claimed the ownership of the land. The maraka was called
upon and was unsuccessful in reaching a settlement. The
case was referred to the local court. The judge after a
thorough investigation of adjudicating the case with
respect to the Pashtun tsali rather than Islamic law'
reached a verdict of bread. The judge ordered that two
persons from tribe A should take the special oath, bread.
These persons should be elderly individuals and of honest
character. One of the individuals took the Quran under
his arm and,followed by the other, crossed the portion of
the land they believed belonged to them. After the act
of special oath taking was over the land went to group A.
One of the individuals who took the oath became deaf in
his later days. Many people still believe that it was due
to the effects of taking an oath under false pretenses.

Case No.9: Disputed Land Sale

Place: Almara
Date: 1966

248
 A man (A) owned a piece of land adjacent to and
including a forested hill. A agreed to sell the land to B
who assumed that the hill was included in the deal.
Because of this false assumption a dispute arose and
initially A denied his deal with B. Later he acknowledged
the sale of the land, but not the hill. ,
The maraka was called upon. B brought up a legal
point that anyone who claimed that the land belonged to
him was his son. According to the Pashtun customary law,
arable land is basic and mountain land and forest are
secondary phenomena attached to it. Two ideas were implied
in B's statement: (1) as A, himself acknowledged, B had
the right of ownership over the land; it means that he had
the right of ownership over the primary phenomenon which
was the land; (2) B claimed that the right of ownership
over the primary phenomenon (land) and declared that the
secondary phenomenon (mountain forest) was attached to it.
therefcre, belong to him also. Moreover, he claimed that
the only person who could claim the mountain would be his
son. According to the Pashtun custom while the father is
alive the son cannot have the right of ownership over any
part of his father's property. When the maraka heard his
legal point, they decided that the land and the mountain
forest should go to B. In this way A lost the case.
In this connection, I must mention two points: First
in many incidents a logical, legal and legitimate point
may become a good reason to win the case without taking an
oath or leaving the arena to continue the fight. Second,
when an individual wants to sell his land he is required
by the Pashtun customary laws to inform his close relatives
about the case although in some cases his relatives might
not be his shaf (having land near to another person's land).
",

In "Pashto" close relatives are an individual's neighbors

or shaf.

Mountain:
The disputes over mountain sides and their related
forests most often occur between or among tribes. The
procedures for getting together the members of a maraka
(village council) are almost the same as in other disputes.
When the maraka convenes the members inquire about the
nature of the case by asking why. for example, group A or
B claims the right of ownership over the mountain or forest
and what their basis of argumentation is. Either of the
two groups who present the following reasons for ownership
may be considered as the owner of whole or part of the
mountain or forest.
1. According to the Pashtun tsali (customary laws)
when water comes from a portion of a mountain and goes to
an individual's (or group's) land or passes through the
land, that portion of the mountain belongs to the owner of
the land.

250
 2. The banda is a single hut Inade of stones, mud,
wood and branches in the mountain where the lumbermen or
herders and some or all members of their families live
during the summer time. It can also validate ownership of
the mountain. Lumbermen and herders (sing. shpoon) move
during the summer into the mountains and make banda
(summer huts in the mountain). When the marakachian
(council members) look for the evidence and they go to the
mountain and find one or several bandas, they ask who owns
them. The people who own the bandas (huts), according to
the Pashtun tsali (codes), have the right of ownership over
the mountain and forest as well.
3. Very often springs in the mountains are surrounded
with small plots of cultivable land. Based upon the Pashtun
tsali (laws), the people who own the spring and the
surrounding arable land own the mountain and forest.
4. Names of mountains are also very important in
this respect. Most often mountains are called by the names
of their inhabitants and ovmers such as a tribal name.
All the above mentioned items indicate ownership.
When tribe A presents one or several of the above mentioned
reasons for the ownership and tribe B also claims ownership,
but fails to give evidence as such, tribe A may have the
mountain at the price of an oath taking. The number of
people who must take the oath depends on the value and
importance of the mountain. For example, since almost all

251
PLEASE NOTE:
This page not included in
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Graduate School. Filmed
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UNIVERSITY MICROFILMS
 mountain and forest. Consequently, they decided that the
area holding the head waters that fed Tanis' village and
passed through their fields should go to the Tanis and the
head waters which feed the Zadrans' village and farms
should go to the Zadrans. Moreover, they decided that the
top of the mountain range should constitute the border
between the opposing tribes. The decision seemed logical
and the opposing parties were satisfied and accepted it
and thus, peace was accomplished and the prisoners were
released.

Case No. 11: War Between Sapyikhel and Ali Mohammad

Place: Paktya
Da te: 1969
A serious conflict over a branch of the Suroti range
called the Keena Khola occurred between the two major
Zadrall Lineages known as Sapyi-khel and Ali Mohammad-khel.
Because of this dispute several wars broke out between the
opposing parties and I, myself, remember that during the
very last warfare in 1969, a man 30 years old, was shot to
death with a rifle. The warfare was ended by the government
and 80 persons, 40 from on~ side and 40 from the other side
were put in prison.
While 80 persons were kept in jail the government
invited the tukhum (representatives of the council of elders
. from different tribes including two persons from Almara).
The tukhum members went to the Keena Khula and they observed

253
several bandas or tsapari (huts) in the mountains. They
found out the huts belong to the Ali Mohammad Khels. The
tukhum took this point as reliable evidence and made their
decision. They asked for 50 persons from Ali Mohammad-Khel
to take an oath that their claim to the mountain and forest
was just. Fifty persons were sworn in by the members of
.~

the tukhum in public and the mountain and forest went to

the Ali Mohammad Khel lineage and the prisoners were
released.
Although the slain man's father is still alive and
his brothers and other close relatives know the killer, they
cannot take revenge upon that person because the victim was
killed in warfare. The Pashtuns believe that since much
firing by different individuals takes place during warfare,
it is very hard to be perfectly sure who is shot by whom
and who is injured by whom. Therefore, whenever an
individual is killed or injured in a war the revenge must
be taken during another war, not necessarily upon the
murderer or someone related to him. Any other person can
be killed. The victim's relatives from Sapayi-khel can kill
an individual from Ali Mohammad khel only if another war
occurs between them in the future.

Division of Mountain:
The question of the division of mountains is also
problematical for the owners and on some occasions leads to
a confrontation among the sub-branches and lineages.

254
Division of a mountain can be based on these principles as
follow:
1. The number of individuals in the subtribes and
lineages.
2. The number of households in the subtribes and
lineages.
~

J. The area of land of each subtribe and lineage.

Obviously, each subtribe and lineage wants its case
to be decided in a long which benefits the most. For
instance, the subtribe or the lineage which does not
include a great number of individuals and households but
owns a lot of land will argue that land should be the basis
of decision. They may claim that their father is the
other lineage's father's brother and therefore, they have
to be equal in every respect. The subtribe and lineage who
has more logi (households) will favor principle number two.
They may argue that the indemnities in the village are
paid based upon the households. And finally the subtribes
and lineage who has the greater number of individuals will
want principle number one to be applied. According to
them, the individuals who fight and defend the mountain are
men. And also the people who speak up are men. Pashtun
marakachian (council of elders) resolve disputes over
mountain division according to their tsali (customary laws)
as follows: First, they divide the arable mountain foot-
hills adjacent to the subtribes' or lineages' farm based
upon the amount of land each wola or khakh (branch or

255
lineage or sublineage) owns. All of the branches consider
themselves shaf (neighbor) to the land and all claim the
same right and equal portion of the land. It is the custom
that when the father dies, his land is divided among his
sons equally. When a neighboring plot of land is purchased
or sold all brothers have an equal right in its purchase
and/or division.
Second, the foothills adjacent to the arable foothills
should be divided based upon the logi (hearth or household).
This is the part of the mountain over which there has not
been a previous dispute. It is the rule among the Pashtuns
that if any kind of dispute occurs over this type of land,
the householders in the village are responsible for the
expenses. Therefore, when the time comes to divide it, it
is done by the number of logi (households).
Third, the part of the mountain which is situated on
the borders, adjacent to other tribes is very often in danger
of invasion. Because individuals defend their territory the
border land is divided on an individual basis.

Tsale for Resolving Loan Cases:

When A lends some money to E, B has to return the

money on time to the lender. If he does not, A will send
an intermediary to the borrower to tell him to repay the
money. In situations where the debtor refuses, A may send
him another intermediary, to ask him if he wants to do lyar
(to settle the problem based upon the Pashtun customary law)

256
with him. In a situation in which the borrower agrees upon
this method of settlement and if there are at least two
witnesses and both of them acknowledge and swear in favor
of A, then B is obligated by the Pashtun customary law to
pay A the amount the witnesses say, either in cash or in
kind. When the lender sends an intermediary to th~ debtor
asking him to resolve the dispute peacefully and the
borrower does not want to settle the dispute, then according
to Pashtun traditional law the lender is permitted to offend
the borrower in any manner he wants to, except kill him.
For instance, he can kidnap the debtor or one of.his close
male relatives until his relatives come and pay the money
and settle the dispute. He can likewise capture the
borrower's camel or an ox and bring it to his village or he
can damage his farm or garden. But if the lender, prior to
informing the borrower via an intermediary, offends the
debtor, the lender must pay sharm (shame) to the borrower
upon the resolution of their dispute.

Tsale for Resolving Injury Cases:

According to the Pashtun tsali (customary laws) a

human being consists of four major categories: (1) Eyes,
(2) Feet, (3) Hands and (4) other parts of the body.
Based upon the Pashtun Tsali (customary laws) a
human being was worth 60,000 Afs. 8 Today since money does
not have the same value as it did, it is more difficult to
price human life. Nevertheless, based upon the traditional

257
value of a human being each major portion of the body is
worth 15,000 Afs.

Eyes:
When an individual injures another's eyes and the
person becomes blind, Ute offender is required to pay a pour
(indemnity) of 15,000 Afs. Also, he has to make a 'com-
pensation of what is called topaki or medical expenses.
There is a limit to the topaki (medical expenses) that
may be claimed by the plaintiff. If the amount claimed by
the plaintiff is )0,000 Afs. or less, he is entitled to
have the money without swearing. If the money claimed by
the injured is more than )0,000 Afs. he must take an oath.
In the latter case, the culprit customarily would take the
amount of money claimed and put it on the open Quran and
would ask the injured to collect the money. This is con-
sidered a type of swearing.
In addition, offender and his close relatives together
with the marakachian (members of the council of elders) and
one or two religious persons such as the imam and sayeds
have to go to the injured person's house and ask for for-
giveness. This is called nanawat (taking asylum). The
offender is also obligated by the Pashtun tsali (laws) to
take a goat or sheep as sharm (shame) to the plaintiff's
house. The plaintiff slaughters and cooks the animal and
invites the important and high status individuals of the
community to let them know that the parties have resolved
the dispute and the honor of the offended was not damaged.

258
 When an individual blinds another individual in one
eye, he is obliged to pay a pour of 7,500 Afs., topaki
(medical expenses) and sharm and perform nanawat. Although
a person can work with one eye and it may not affect one's
sight drastically it is worth one-eighth of the whole body
of a human being because it blemishes the face.

Nose:
Amputation of an individual's nose or a serious injury
on a person's nose is considered a great offense by the
Pashtuns. There are historical, physical and social reasons
for this seriousness. According to my informants in ancient
times, when a Pashtun woman committed adultery and it was
known to her relatives and husband, the woman's father,
brother or husband would cut off her nose and ears and would
break her legs and shave her head. They would do the same
to the adulterer but were not allowed to kill either the
man or the woman. In situations like this the killing of
the adulterer or adulteress is now the common practice among
the people. However, they no longer break the legs and cut
off the nose and ears. I believe the change from amputation
to killing is attributable to the law of Islam which
requires that adulterer and adulteress both should be killed.
This traditional method of dealing with adultery is
illustrated in an expression still common among the villagers.
When a mother gets angry at her daughter, she threatens her
with "May your nose and ears be cut!" Similarly, when a

259
father gets angry at his son, he says, "I will break your
legs if you repeat this action."
The position of the nose as a central and prominent
part of the face is self evident. This is the main reason
why Pashtun tsali (customary laws) give more importance to
the nose. Even at the present time when a mother goes out
'-
to hunt for a beautiful bride for her son, she discusses
with him upon return the quality of the nose's prominence
and height in addition to the eyes and the hair. A woman
who lacks the attributes of a prominent and high nose,
black eyes and long hair lacks beauty and consequently does
not attract the attention of the man. Thus, by the punish~

ments mentioned above, the adulterer and the adulteress

were being deprived of their beauty.
These punishments were of two-fold quality: the pain
resulting from amputation and breaking legs were physical
in nature, while the mutilation of the face or body which
detracts from an individual's beauty was of a social and
psychological type.
The act of amputating a person's nose is considered
a grave offense and insult by Pashtun tsali(custornary laws).
The amputator may be obligated by the maraka (council of the
elders) to pay a pour of 30,000 Afs., which is equivalent
to one-half the value of a human being. The wrongdoer may
also be required to pay topaki (medical expenses), sharrn
and go nanawat to the amputee's home and ask for forgiveness
in the presence of the village council and the village.

260
Teeth:
Pashtun tsali (customary laws) define special punish-
ments for tooth injury. According to these laws each tooth
or group of teeth have different values depending on the
positions and functions they have. The Middle dari
(incisors) from the upper and lower ~ (jaws) are, the
most important because lack of them makes the mouth ugly
and affects the speech apparatus as well as mastication.
For each one of these four teeth, the Pashtun customary law
requires a "fine" of 5,000 Afs. Each of the remaining four
other incisors are worth 2,500 Afs. For breaking or ex-
tracting any of the four canines, the defendant is "fined"
2,000 Afs. Since all of the premolars and molars are not
visible and do not affect speech each one costs 1,000 Afs.

Hands:
Both hands are considered to be worth one-fourth the
value of a human being. Being right-handed is regarded as
respectful among the Pashtuns. Since the right hand is
more useful and considered important, if an individual's
right hand is broken or injured seriously,it is worth
10,000 Afs. The left hand is worth 5,000 Afs. but if a
person is left-handed, it costs 10,000 Afs. and the right
hand 5,000 Afs.
Since right-handedness is encouraged from childhood
the number of left-handed individuals is very small in the
country in general and among the Pashtuns in particular.

261
Very often being left-handed is considered bad manners and
it is discouraged.
Payment for damage incurred to the fingers, is
interesting anthropologically. Obviously in the process
of human and culture evolution the role of thumb is very
important. The Pashtuns have realized the function..... and
importance of this digit and they have given great value
to the thumb in their traditional laws. Accordingly, a
thumb is regarded as one-half of the value of one hand.
Therefore, it is worth J,750 Afs. The finger next to the
thumb, shahadata 6 (index finger) based upon its function
and position is worth 2,500 Afs. The third, fourth and
fifth fingers, because of their functions and their positions
as well as their cosmetic value, have different values
ranging from 2,000, 1,500 and 1,000 Afs. respectively.

Feet:
Both feet are also considered one of the four major
categories of the body. Together they value 15,000 Afs.
There are three categories of leg injuries (goudawol):
(1) tound goud, (2) wouch goud and (J) ~ goud. When an
individual's one leg is injured or broken to the extent
that the person still has partial use of it and his physical
appearance is not deformed, it is called tound goud (alive
lame). This kind of injury in addition to paying topaki
(medical expenses), sharm (shame) and going nanawat to the
injured horne for asking an apology, costs the wrongdoer
one-eighth of the value of a man's pour. If an individual's
leg is injured to the extent that he or she cannot use it
but the person's physical appearance was not drastically
deformed, it is called wouch goud (dead lame). When an
individual amputates a foot it is called Q!~ goud
(amputated lame). This type is the most serious of all.
"

For the last two types of injury, one leg costs the offender
one-eighth of the human value. Several of my informants
told me that if a person becomes wouch goud (dead lame) or
~ gQud (amputated lame), in addition to the other social
and economic obligations such as the payment o£ topaki
(medication); sharm (shame) and going nanawat the amputee
demands one-hal£ of a human being value, which is )0,000
A£s. Evidel1ce indicates that very often when an individual
becomes wouch goud (dead lame) or ~ houd (amputated lame),
his or her relatives may seek revenge. To the Pashtuns
breaking someone's bone is considered a very serious offense
and the offended party may not become satisfied unless
revenge is sought.
The reasons for considering the foot trouble cases
to be very serious seem to lie in geographical, ecological
and social factors. For people who live in the mountains,
chop trees, make lumber and walk with their caravans from
one city to another, or from one country to another, feet
are very important organs for survival. Therefore, lameness
is regarded as a major debilitating defect to the Pashtuns.
Consequently, according to some of the Pashtun tribes,
making a person completely lame costs the offender one-half
of the value of a human being .

. The following table indicates the "fines" paid for

the injuries inflected to an individual:
Table 7 ( $1 = 50 Ails.)

Body Part "Fine"

Right eye 7,500 Afs.
Left eye 7,500
Right ear 5,000
Left ear 5,000
Nose 30,000
Middle incisor 5,000
Side incisor 3,500
Canine 2,500
Premolar 2,000
Molar 1,OqO
Right hand 10,000
Left hand 5,000
Right foot 7,500
Left foot 7,500
Nail size overt injury 150
Nail size covert injury 100
Threat with a knife 1,000
Threat with a rifle 1,000

Case No. 12: Revenge of a Broken Leg

Place: Paktya Province
Date: 1968
Two families whose head of the households are cousins,
live in one village. In 1968 a dispute over a small piece

264
of land which was estimated to be less than one jarib
(1 jarib = 2,000 m2 ) occurred between them. Each side was
claiming the right of ownership over the disputed land.
One side (A) attempted to cultivate wheat on the farm before
settling the dispute while the two (A) brothers were plowing
the land. Their cousin (B) with his two adult sons carne to
the scene and asked the two brothers to stop plowing. They
did not stop and a fight ensued. Bls wife hit a man from
(A) with a shovel. The man's leg was broken and his hip
was dislocated and as a result he was wouch goud (dead lame).
Several marakas (council of elders) discussed the trouble
case but to date, the injured party has not been satisfied
and has not accepted any resolution because of the severity
of the injury. Very often when an injury is a broken bone,
no matter which bone it may be, the offended party may seek
revenge as they do in case of homicide. After the first
fight, they fought two more times, once when I was in the
field. Each time A's brother and their sons tried to break
someone's leg from the opposite side, but they have been
unsuccessful. They are still seeking revenge.
In the case of other injuries, the amount of pour
(indemnity), topaki (medical expenses) sharm (shame) and
nanawat (taking asylum to the offended party's house) depend
upon the nature, size and position of the injury on the
body of the injured. The length, width and depth of the
injury is measured by the marakachian {members of the
council of elders) with the nail of the shahadata9 (index)
finger. If the area of the injury is equal to the area of
the shahadata finger and if its depth is also like the
finger nail and it is an overt or manifested injury, it
costs the wrongdoer 150 Afs. If the injury can be covered
or veiled with cloths and/or it is hidden, for each nail
size injury the offender may pay 100 Afs. For the covered
and uncovered injuries the assailant, in addition to paying
pour (indemnity), is required to compensate for the
medication expenses.
When an individual takes his peashkawza or statawah
(knife) out of its cover, opens it and threatens another
individual but does not injure him, he is obligated to pay
a pour (fine) of 1,000 Afs. When a person takes his rifle,
loads it and threatens another person but does not shoot
there is nothing required to be paid. But if he takes his
rifle and shoots, even if he misses the individual, he is
obliged to pay a pour of 1,000 Afs. and one sheep sharm
(shame). It should be pointed out that this type of action
very rarely happens among the Pashtuns. A Pashtun most
often carries a rifle on his shoulder, a pistol around his
neck and a stawah (knife) in his waist because weapons are
considered ornamental for men. But very rarely does he
shoot or injure another individual. When a man takes his
rifle from his shoulder to load it, or when he takes his
knife out of its cover, he must use them or else lose face
and be called a coward.

266
Tsali for Resolving Farm and Animal Damages:

When an individual damages someone's farm, garden or

an animal in addition to making compensation for the exact
value of the property he is required by the customary law
to pay 1,000 Afs.as pour (indemnity) and sharm (shame). In
these cases since damages are not great and usually~does

not exceed 20,000 Afs., the village jirgah (village

council) may settle the trouble case through mediation.
The jirgah members may make an assessment of the damage
~nvolved and accordingly, adjudicate the dispute. The less
important cases are generally resolved through jirgah
(mediation) because maraka (arbitration) requires more
expenses.
Similar to human beings an animal also consists of
four major categories: (1) eyes, (2) fore limbs, (J) hind
limbs and (4) other parts. Each major category has the
same value. When an individual injures an anirnal, the
animal may be priced by the mediators. The offender then,
is responsible to pay the cost 0f the injured part of the
animal.
The following table indicates the cost of damaging
certain animals and trees:
 Table 8

Tree Amount Paid Animal Amount paid

in Afs. in Afs.

Apple 1,000 - 2,000 camel 10,000 - 20,000

Apricot 500 - 1,000 ox J,OOO - 7,000
Pomagranate 100 - JOO cow 2,000 - 5,000
Walnut 1,500 - 2,000 donkey 1,000 - 2,000
Mulberry 1,000 - 1,200 sheep 1,000 - J,OOO
Willow 500 - 1,JOO goat 600 - 1,000

($1 = 50 Afs.)

Tsali for Resolving Woman Trouble Cases:

Ghazh (Forceful Engagement Announcement):

When a man, who without negotiating with the girl's

parents and before getting their approval announces his
engagement, by firing a rifle it is called ghazh or zhagh
(announcing an engagement by force). According to the
Pashtun customary laws, although the girl may agree with
this type of engagement, it is prohibited. The Pashtuns
believe that no women are "unmarried. ,,10 If it were not the
case, since everybody wants and likes the most beautiful,
wise, experienced and intelligent girls, this situation
might result in anarchy among the people. Therefore, when
a man announced his engagement to a girl without the agree-

268
ment of the girl's parents in the past, and if the parents
did not want to reconciliate, the man's death was the
solution for the trouble case because he offended the
girl's father and family's honor. Moreover, in this case
the girl was called ghazh wahalai (the one who was engaged
forcefully) and nobody wanted to marry her. Presently
"
homicide is not allowed in these cases. However, the girl's
parents certainly may marry their daughter tc another
person, most often to one of her father's kinsmen or in a
different political community or tribe far away from their
own and the offender's villages so that the girl should be
out of their daily sight. In addition, the wrongdoer is
obliged to pay an indemnity of 500 Afs., called da bad
Las pour (indemnity for wrongdoing) and one sheep sharm
(shame) and go nanawat (taking asylum) to the home of the
girl's parents with several of his relatives, marakachian
(members of the council of elders) and the imam to ask an
apology for his wrongdoing. In addition, the man should
deny his claim in the presence of all these people.
In situations where the parties want reconciliation',
the man who wants to marry the girl and his relatives may
marry two of their sisters or daughter to the girl's close
relatives, very often her brothers, as an exchange marriage.
One of these two girls should be "married." The term
"married" in this respect is different from the actual
marriage. The boy's father, for instance, may declare
publicly that he marry one of his daughters to a cousin and
then marry the same girl to the other party's close
relative. This "married" girl is equal to the girl whom
the man wants to marry and the second girl is a payment of
pour (indemnity for wrongdoing) for offending the girl's
father and his relatives' honor.

Case No. 1J: Arranged Marriage

Place: Paktya Province
Date: 1969
In one of the Paktya villages there were two children
born on the same day. The girl's father announced his
daughter's engagement on her birthday to the boy. While
he was announcing the marriage, he also declared that he
was giving his daughter to him without asking anything in
return. Before their age of maturity the girl's father
died. The boy's father talked to the girl's paternal uncle
who happened to be her wali (guardian) to arrange a marriage
ceremony for his son. The girl's wali wanted the boy's
sister for his nephew (girl's brother) in exchange. The
boy's father refused and he claimed that the girl was given
free to his son. The situation became a serious dispute
between the parties. The maraka (council of elders) was
asked to convene. The members of the council of elders
decided that either the two sides can exchange their sisters
or they can marry them but only to men outside of their
tribes. Finally, the boy got married to another girl and
his father married his sisters to a man in another tribe.

27.0
The girl's brothers left the village and the girl is
still unmarried. No one knows what will happen in the
future with regard to this particular case.

A Woman Homicide:
When a woman is murdered and the reason is adultery,
~

the adulterer must also be slain, otherwise the husband,

his relatives and the girl's relatives may all be called
dawoos (an individual who cannot defend his own honor and
his woman relatives' chastity or one who divorces his wife.)
If a woman behaves impolitely toward her husband and his
relatives and creates problems for the family, physical
and verbal punishments are permissible. A man does not
have the right to seriously injure or murder his wife for
those reasons. When a husband punishes his wife without
any reason, she may go to her father's house, and she does
not have to return to her husband's house until he promises
not to repeat his deeds. In addition one of his relatives
must act as a bondsman to guarantee the case. If the
promise is broken the guarantor is responsible to pay a
pour (indemnity) for wrongdoing of 440 Afs. (20 x 22ll) and
the woman may go back to her father's house. When a woman
escapes from her husband's home, her kinsmen are customarily
responsible to return her. When the woman is returned to
her husband's house and there is fear of her escaping again,
her relatives should tell her husband to watch her. After
that the husband is responsible for his wife's escaping the
house.

271
Adultery, Rape and Abduction:
Due to the very strict rules among the Pashtuns,
adultery, rape and abduction trouble cases are very rare.
However, there are tsali (customary laws) for resolving
those cases. When a girl is forcefully abducted by a man
from her parents' house and she does not complain o~ refuse,
her father and brothers are responsible for killing the
man and the woman. If she is abducted from her husband's'
home, the husband will murder his wife and the man. In
situations where the abductor happens to be murdered and
the abductee still lives in her lover's horne, she will be
married to her lover's brother. In this case, Pashtuns
tsali (customary laws) allow only the adulterer to be slain.
If the woman's father, brother or husband kills the second
man (woman's lover's brother), the woman will marry the
third brother or his kinsman. Since there does not seem
to be an end to the trouble case, it may result in a feud
or warfare, as the tribal customary laws regarded permissible
only the killing of the woman and her first lover with
whom she escaped.
When a man and a woman are caught in one bed (if it
is not rape and a forceful act), both are to be murdered
on the spot. If only one person is slain, the killer is
regarded as a murderer because, in essence, according to
the Islamic shari~, (laws) and Pashtuns tsali (customary
laws) both individuals were outlawed and guilty and
accordingly liable to be killed. Leaving one alive confuses

272
the situation and results in suspicion as to the real
motive of the slaying. In a situation where a man asks a
woman to go to bed with him and she refuses, or if she is
raped, the man is liable to be slain.
Among Pashtuns and other Afghans adultery, abduction,
and rape are considered major offenses and sins. Thus, in
order to make the offenses hard and impractical, the
Pashtuns tsali (rules and laws) permit killing of up to
seven men from the offender's side. When a man abducts a
woman and both parties want reconciliation, the pour
(indemnity for the wrongdoing) for this action, in addition
to two sheep as sharm (shame) and nanawat, is two
women. One of these women should be marosha or konishkale
("married").

Tsali for Resolving Homicide Trouble Cases:

When an innocent individual is main according to the

Pashtuns tsali (customary laws) only the murderer should be
killed in revenge. If the slayer escapes the country, as
many do, and the relatives of the murderer cannot find him,
the offended party is permitted by their customary laws to
avenge and kill one of his sons or brothers. Several
informants reported that until about 20 years ago, relatives
of the slain could kill anyone of the murderer's close
relatives even if the slayer was present in the village.
In recent years the rule was changed due to the effects of
Islam and increased education.

273
 In situations where a person slays another person and
he and his relatives want reconciliation and resolution to
the trouble case and/or the opposite party is ~Jor and
does not have the power for revenge, the marakachian (council
of elders) may convene to resolve the trouble case peace-
fully. When the maraka (council of elders) make a decision
satisfactory to the both sides a nake or a khoon (blood
price) of 60,000 Afs. should be paid by the slayer's party.
Moreover, the murderer in addition to "Pashto" sharm
(shame ), two sheep and going nanawat (taking asylum
to the slain's horne), must provide the other party with an
unmarried girl.
Upon the resolution of a homicide case, if the
opposed parties want further reconciliation after the
decision made of the maraka (council of elders) the council
members construct a set of stone tsali (pillars) equal to
the number of slain individuals from both sides. If there
were only one murder case they make only one pillar. Then
one person from each party is asked to destroy the pillars
one by one alternately. Finally, one pillar remains extra
representing one more individual from the opposing party.
After the payment of the nake (blood price), one relative
of the victim customarily may approach the pillar and
destroy it. This act signifies that the dispute is over,
the trouble case is resolved and the parties do not want
further revenge.

274
 The roles of marriage in these cases are very signi-
ficant. On some occasions the marakachian (the members
of the council of elders) may advise both sides (or the
opposing parties themselves may decide) to exchange
daughters or sisters. Although a homicide case may be
involved and it is very hard for the slain man's p~rty to
tolerate the situation without revenge, the marriage ties
may bring the two inimical parties together and- make them
close relatives and afines rather than enemies.

Case No. 14: Surrogate Revenger

Place: Paktya
Date: 1949
A slain individual's brother could not take revenge
from an enemy because he was alone and poor. Therefore, he
asked his cousins and other relatives to take revenge and
he will do the zhagh (making it known to the people that he
was responsible for the kill). One of his cousins shot an
individual to death from the opposing party. The opposing
party did not interpret the incident as revenge for the
murder for which they were responsible. They claimed that
the slain man has his own brother who should avenge the
most recent murder. The maraka (c0uncil of elders) was
convened, but was unable to settle the trouble case. The
number of the maraka was doubled and they as a secondary
court could not solve the trouble. Therefore, the tukhum
(the Pashtun supreme court) was convened. In addition to

275
six members from other subtribes of the Zadran stock, two
men were invited from the village of Almara. Hundreds of
people were waiting to hear what they had decided. It was
an important case because based upon the decision of that
tukhum (Pashtun supreme court) the custom of zhagh could
be prohibited. An elderly member of the tukhum wa~ asked
by the council members to announce their decision to the
parties involved as well as to the public. The experienced
elderly man raised his cane and pointed it toward the
public and said, "My dear fellow villagers do you know who
is responsible for the murder? The individual pays for the
negative consequences who slays other people on behalf of
his relative," he repeated himself twice. In this manner
the trouble case was partially resolved and the slain man's
relatives understood that the cousin was responsible for
the death.
This trouble case and the maraka (meeting of the
council of elders) is very well-known historically. It is
important because first an ancient rule was abolished and
a new one was introduced. Traditionally a relatively distant
kinsman could take revenge even though the victim's father
or brothers were alive. The new rule says only close
relatives can take revenge. Second, the custom of zhagh
was abolished. It was a very common practice among the
Pashtuns that if an individual for some reason was not able
to take revenge he could pay another individual to take
revenge f~~ him. I was told that in recent years several

276
individuals who were rich and thirsty for power would give
money to other persons and ask them to slay their opponents
for them. Because of this practice, innocent persons were
occasionally slain.. After the man was slain the rich would
make thezhagh (announcement) that he was responsible for
the slaughter.
Since these customs were very disruptive, the decision
made by the above mentioned maraka was accepted as a rule.
Presently no one except the slain individual's close
relative or wali (guardian) can take revenge. Also, no one
can murder another individual on behalf of the guilty
person. This rule also conforms with Islamic law.
Generally speaking two opposing types of resolution
of conflicts have been discussed in this essay: violent
resolution and peaceful resolution. Under the former
category the question of feuding and warfare, their scopes
and causes were explained. I define feuding as a state of
recurring hostilities between families or groups of kinsmen
or families in two different political communities, usually
motivated by a desire to avenge an offense-whether insult,
injury, deprivation or death - against a member of the
group. The most characteristic feature of the feud among
the Pashtuns is that responsibility for revenge is carried
out by the close members of the kin group. Warfare is
defined as armed combat between the political communities.
It is usually premeditated and organized by the leaders.

277
 It is a large-scale confrontation where a short-term use
of force is enacted in order to achieve a limited objective
such as the acquisition of goods, animals or other forms
of wealth, land, forest belonging very often to a neighbor-
ing community. Warfare differs from feuding in that it
can more readily be terminated, temporarily or permanently,
by recognized methods, such as truce or negotiated settle-
ment.
Under the latter category I described the settlement
of conflict through mediation, arbitration, intermediaries,
negotiation and taking oaths. I have to note that I
discovered two very important and efficient ways of conflict
resolution among the Pashtuns of southern Afghanistan; (1)
Marakachian (village council) resolves the trouble cases
through arbitration. They do not control the department
of police in the village and do not have courts at the
tribal level. They developed their own way of using force
which is taking baramta (money or other form of wealth) to
encourage the parties involved to accept the decision made
by the maraka (council of elders). (2) Oaths and ordeals

is another common and very efficient method of conflict

resolution. None of the prominent anthropologists such as
Barth (1959a, 1959b, 1964, 1966, 1969), Antoun (1972a, 1972b),
sociologists such as Ayoub (1964), political scientists
such as Bill (1974) even mentions this method of conflict
settlement. Oath is defined as a solemn, usually formal,
calling upon God or a god to witness to the truth of what

278
one says or to witness that one sincerely intends to do
what one says. The Pashtuns believe that a false oath
ruins one's descendants' honor, causes bad luck, and
illness among the members of the family. reduces human
reproduction as well as farm yields. An ordeal was defined
as a "primitive" means of determining guilt or innocence
""

by submitting the accused to dangerous or painful tests

believed to be under supernatural control (Webster 1961:
1587). Two different types of ordeals were discussed: (1)
Placing a red-hot piece of iron on the open palm. (2) The
accused is asked to pick up three rocks out of a pot of
boiling water. I found the settlement of conflict through
swearing very practical and effective among the Pashtuns
and other Muslims. The custom of ordeals, because of its
invalidity, is not practiced anymore.

279
 FOOTNOTES TO CHAPTER VII

1
In recent years an important controversy has
arisen concerning the extent to which different lexemic
categories and grammatical. rules produce habituall~ incom-
patible modes of thought among peoples who belong to
different language communities. At the center of this
controversy is the comparison made by the anthropological
linguist Bengamin Lee Whorf (1956) between American
Indian languages and the Indo-European family of languages
to which English belongs. According to Whorf, when two
language systems have radically different lexemic and
grammatical structures, their respective speakers live
in wholly different thought-worlds. Even such fundamental
categories as space and time are experienced differently
as a result of the linguistic "molds" which constrain our
cognitive process. Whorf has written that:
The forms of a person's thought are
controlled by inexorable laws of pattern of
which he is unconscious. These patterns
are the unperceived intricate systematizations
of his own language--shown really enough
by candid comparison and contrast with
other languages, especially those of a
different linguistic family. His
thinking itself is in a language--in
English, in Sanskrit, Lin Pashto, in
Persia~, in Chinese. And every language
culturally oriented the forms and
categories by which the personality not
only communicates, but also analyzes
nature, notices or neglects types of
relationship and phenomena, channels

280
 his reasoning, and builds the house of
his consciousness (1956:252).

2Tsale is a Pashto word. It means pillar, mark,

boundary or stone with which trails, roads, river path or
boundaries are marked.

3The term jirga (the council of elders) is now

spelled jirgah in the Constitution of Republic of Afghanistan.
Examples are Mali Jirgah (National Assembly or House of
Representative) and Loya Jirgah (Great Assembly). '

4For a detailed discussion of this, see Caroe (1965)

and Gregorian (1969).

5A wak is a right given from the litigants to the

marakachian (members of the council) to adjudicate the
trouble case in whatever manner they see fit. After the
wak was granted, the decision made by the members of the
council should be accepted or else the party refuses to
accept the decision, loses the baramta (guarantee).

6Katow is a Pashtun word for a ceramic pot in which

meat is cooked. When the question is asked "katow is
whose?" it literally means who is responsible for the pre-
paration of food for the members of the council.

7Marakachi is a Pashto word meaning the people who

do maraka (adjudication). Marakachian is the plural form
of marakachi.

8Sixty-thousand Afs. about thirty years ago were a

lot of money and probably it was very difficult for a
middle class family based upon the Afghan standard to earn
that much money in ten years.

9It is called shahadata (indicator) because the Afghans

point and indicates things with this finger.

10pashtuns consider women as one of the three value-

abIes: Zer (precious stones and gold) zamean (land), and
zan (woman). They are scarce resources and people compete
for them. Therefore, they believe that scarce and valuabJe
things should· have an owner. Hence, all women are conside. 'ed
"married."

281
 11 Although one Afghani is the basic monetary unit in
the country, when the marakachian (arbitrators) talk about
the payment of a pour (indemnity for wrongdoing) for an
offense the smallest unit of money they use is twenty (shffi)
Afs. I believe that the reasons for this relies on the
fact that one Afgh~ni (Af.) has very little value. This
formula is also applied with Reyal in Iran. Iranians very
often talk in terms of Tomons (20) and not in terms of
Reyal.

282
 CHAPTER VIII

SUMMARY AND IMPLICATION FOR MODERNIZATION

As has been mentioned there are two kinds of

regulating norms (in Almara in this study they both have
been called tsali (customary laws) or traditional tribal
laws~ the law of private delicts and the law of public
delicts. Consequently, two types of legal sanctions are
presented among the Pushtuns and may be applied by the
tribal authorities in Pushtunland: restitutive and penal.
A restitutive sanction based on Pushtuns tribal law is
an obligation that the offender must make payment to the
plaintiff in a. dispute. The payment among the Pushtuns,
as we have seen is in cash, kind, behavior (nanawat or
the law of asylum and asking for apology) and even often
in human price (exchange of women). A penal sanction on
the other hand, among the Pushtuns, is a payment inflicted
upon an inaiviaual or a family who is responsible for
violating a rule of conduct. In this case the Pashtun politi-

cal communities have the power to impose ostracism or some-

times even burn the wrongedoer's or his family's house,
or often forbid the wrongdoer from coming to the community
mosque and participate in other ritual and ceremonial
affairs. In many occasions the offender who does not

28;
comply with the decision made 'by the council of elders
may lose his baramta (guarantee paid to the council
members) .
The peasants and the tribal peoples that are found
in the southern foothills of the Sulaman range do not
retain their tribal institutions through ignorance,._ but
as a stable and successful adaptation to the natural and
social environment in which they find themselves. The
Pushtuns' live in village clusters, and their face-to-face
communication, their common mosque, their common dikes
and water channel systems (which are behind the power of
an individual or a family to establish and manage them
and requires group actions), their system of sUbsistence
economy (cutting forests and agriculture, which require
fellow villagers' help), their lumber trade with Pakistan
(which due to the presence of brigands on their way
necessitated a large caravan of camels and movement of a
great number of people as a group with their caravan)
have enabled them to develop their own way of controlling
their society's affairs and of developing a way of living
adaptable to their every day life. Moreover, they have
their own political, administrative and historical back-
ground as well as their own communication and transportation
systems. The lack of good means of transportation, good
roads, Afghanistan's cold and severe winters, the great
distance between the capital and other major cities where
the judiciary, administrative and main police departments

284
were situated from the Pushtuns' communities, the strictness
of absolute monarchs, the bad conditions of the prisons,
the cruelty and tyranny of prison guards, the lack of
sufficient financial support to live in the major cities
and of hiring professional lawyers for litigation, and
some other ecological requirements have enabled th~

Pushtuns to develop a set of tribal laws and codes helpful

in controlling offensive behavior and, beneficial in
maintaining harmony, equilibrium, cooperation and group
action within the society.
King Amanullah, who reigned in Afghanistan from
1919 to 1929, initiated the first full-scale attempt to
modernize that country. His extensive program crashed in
ruins in the midst of a revolution which resulted in
Amanul1ah's abdication and exile. Afghanistan thereby
lost at least half a century of progress because the
political ~haos which followed Amanullah's abortive
experiment in fact turned the clock of history back,
not to 1919 when Amanullah ascended the throne, but rather
to 1880 when his grandfather, the great Amir Abdur Rahman,
abolished feudalism and began to forge a united Afghanistan
in order to modernize the country (Poulada, 1969:99).
This grievous setback to Afghanistan's ambitions to
become a modern state has hampered Afghan development until
recent times. In March 196) General Mohammad Daud, the
present President of the Afghan Republic (who was
Prime Minister of the country for nine and a half years),

285
suggested to King Mohummad Zaher Shah (disposed by a coup
d'etat on July 17, 1973 led by General Mohammad Daud)
that the time was ripe for democracy. The now desposed
king accepted the proposal but because of the fear of
his cousin's popularity among the people, he asked him
to resign. Prime Minister Mohummad Daud resigned l .~nd
was replaced by a commoner, Dr. Mohummad Yousuf. The
Afghan government then planned to establish a new
political system entitled the "Afghan New Democracy"
with a distinct separation of legislative, executive and
judicial powers.
In fact, the introduction of the "Afghan New
Democracy" was the adoption of a Western political system
with most of its characteristics. The executive, judicial
and legislative powers were separated. A national election
system was set up and all of the representatives for the
Common House were elected by the people, as is the custom
in many of the Western countries. Western lawyers were
the advisors for the Afghan Constitutional Committee.
Most of the Western countries' laws were translated into
Pushto and Dari and were incorporated into Afghan law.
Meanwhile, newly-organized police departments, courts and
prosecutors' offices were established throughout the country.
When reviewing the anthropological as well as the
sociological literature regarding social and political
change, without any doubt one may find many examples of
negative instances. In general, there seems to be a

286
tendency for more such examples of negative instances.
Evidently, social scientists do not usually become aware
of inflUencing factors except when they act as barriers
to acceptance or influence the situations in a negative
way. Also, the most frequent role of social scientists
is that of problem-solvers. They consequently very
....
often look for significant barriers and negative results.
The cases such as "In the Wake of a Wheel: Introduction
of the Wagon t a the Papago Indians of Southern Aris ana, "
by Wesley L. Bliss (1961: 2J- JJ), "Steel Axes for Stone
Age Australians" by Lauriston Sharp (1961:69-90), and
"The Wells that Failed: .An Attempt to Establish a
Stable Water Supply in Viru Valley, Peru" by Allan R. Holmberg
(1961:11J-12J) are good examples of this sort.
In contrast it must be pointed out that in spite
of its corruption, many difficiencies and negative effects,
the introduction of the "Afghan New Democracy" and the
endorsement of the new Constitution by King Zahir Shah
on October 1, 1964, had many positive aspects. The new
Constitution allowed the freedom of speech and the press,
called for a two-house parliament and an independent
judiciary, and barred members of the royal family from
serving as Prime Minister, cabinet members, the chief
justice, or parliament members. The king appointed the
Prime Minister who had command of the armed forces
(Yousefzai 1974:167-18)).

287
 On the other hand, to look at the negative side of
the "Afghan New Democracy" and the adapt ion of Western
Nations' laws and political models, we can find many
conflicts between the Western models and the Afghan
social values and traditional tribal laws and codes.
It seems to me that the Westerners' (even the Turks' " and
Indians') laws, from which Afghans' new alws stemmed,
have developed under different social, historical,
ecological, technological and ideological circumstances.
Being not fit for the Afghans affairs, the Western political
model and laws resulted in many conflicts. According to
the new Constitution the people are forced to resolve
their disputes and trouble cases based upon the new laws.
The police departments are involved in disputes. The
people are obliged to go to the courts when they are
mandated by the law. They are supposed to hire lawyers
for their defense. Outlaws are sentenced to jail and are
put in prison. According to the new constitution every
Afghan has the right to go to the polls to vote and
elect his or her representatives. All these events are
new to the nation as a whole. Out of 29 cases analyzed
in this dissertation 22 (75.86% of the total sample) were
referred to the jirgah, maraka or tukhum. Only one case,
of the total cases referred to the council of elders,
was not resolved. The reason for this was a broken bone
(leg) and the injured man and his relatives wanted revenge.
Five (17.24%) of the 41 cases were first referred to the

288
 Table 9 Key: R = Resolved
U = Unresolved
Coh = Cohesion
Cf = Conflict

Case Trouble Case Maraka Reported to Resolution of Resolution of

No. Convened the Government Conflict Through Conflict Through
Maraka the Government

R U R U Coh Cf Coh Cf

1 Feud Over Hunted

N Partridge x x
ex:>
\0 2 Feud Over Land x x
J War Between Zazis
and Mengels Over
a Mountain x x
4 Conflict Over a
Hen x x x
5 Theft x x
6 Theft of a Bull x x
7 Missing Merchandise x x
8 Conflict Over a
Piece of Land x x x I

9 Disputed Land
Sale x x
10 Confrontation
Over the Tsate x x x
 (Table 9 continued) Key: R = Resolved
U = Unresolved
Coh = Cohesion
Cf :=: Conflict
Case Trouble Case Maraka Reported to Resolution of Resolution of
No. Convened the Government Conflict Through Conflict Through
Maraka the Government

R U R U Coh Cf Coh Cf

11 War Between Spyi-

khel and Ali
Mohammad-khel x x x
I\)
-.0
0
12 Revenge of a
Broken Leg x x
13 Arranged Marriage x x
14 Surrogate Revenge x x
15 Death by Smoking
Pipe x x
16 Murdering a Driver
on the Highway x x x
17 Confrontation
Over Election x x
18 The Kill of Two
Persons to Win
the Election x x
19 Conflict Over
Election x x
 (~l'able 9 continued) Key: R = Resolved
U = Unresolved
Coh = Cohesion
Cf = Conflict
Case Trouble Case Maraka Reported to Resolution of Resolution of
No. Convened the Government Conflict Through Conflict Through
Maraka the Government

R U R U Coh Cf Coh Cf

20 POlygany and
N
Conflict Between
\() the First Wife
t--"
and the Husband x x
21 Conflict Over Land x x
22 Conflict over Up-
rooted Trees x x
23 Prisoner Death in
the Prison and
Seeking Revenge x x
24 Conflict Over the
Wood Price x x
25 A Fight Over Bus
Fare x x
I
26 A Death by an
Accident x x
27 Confrontation
Over Marriage x x
 (Table 9 continued) Key: R = Resolved
U = Unresolved
Coh = Cohesion
Cf = Conflict
Case Trouble Case Maraka Reported to Resolution of Resolution of
No. Convened the Government Conflict Through Conflict Through
Maraka the Government

R U R U Coh Cf Coh Cf

28 Conflict Over
Buying Land From
N x
a Sick Man x
'"
N
29 Homosexuality and
Feud x
government but were not resolved there. Then the same
cases were resolved by the council of elders.
To a Pushtun, the involvement of the police, and the
judges or the reporting on a trouble case to the pOlice
and going to court on the part of the plaintiff and the
defendant, indicates that the individual was weak, ,timid.
Moreover, when the wrongdoer goes to jail, and is being
penalized and fined by the court, it does not resolve
the dispute but rather intensifies the opposition and
enmity between the parties involved. The data from the
village indicate, the greater the utilization of external
legal tradition in rural communities the more intensive
is internal conflict (see Table 9). One of the reasons
that could account for this is putting the offender in
prison. In the case of an offender who is the head of
the family, or the major source of income for the family
and is sentenced to jail, this situation affects the
whole family's economy, thus increasing the sense of
hostility between the families. Before 1964 among the
Pushtun the custom of electing their representatives for
the two-house parliament was an established pattern, that
is to say, each elective region consisting of two or
more tribes took turns and sent their representative to
the parliament. For example, if an elective region involved
four tribes (A, B, C, and D), the first tribe A in its
tUrn would assign their representative, secondly tribe B,
thirdly tribe C and finally D (as among people of Gardez,

293
the capital of Puktya). After the new Constitution became
effective on October 1, 1964, the traditional PQshtun
pattern of taking turns regarding the electing of
representatives was abolished and formal elections were
established. Members of each tribe tried to win the
blection and send their own representative whenever- they
could win the election. This situation brought about
many hostilities, and conflicts among the tribes ensued.
Based on this reason even affines who are members of the
different tribes situated in the same elective region
do not like each other, and so broke off their very
intimate relations. Just as in decades before, the
problems of language and ethnicity were once again stirred
up (see cases #17, 18 and 19).
Afghanistan is a nation with many different ethnic
groups and at least two major languages both of them
defined by the Constitution of 1977 as national and
official languages. The questions of ethnicity and
language unfortunately have been serious problems for
the country and national integration for decades. The
recent conflict situation of external and internal laws
has intensified the situation. The primary reason for
these conflicts between linguistic groups and ethnic
groups are not ethnicity and language. The fundamental
reason seems to be demand for scarce resources such as,
official governmental, judiciary and parliamentary positions.
Collier has said that:

294
 Researchers interested in political
Land lega~ processes have postulated
that competition and conflict are
endemic in social life because culturally
defined prizes are such that there is
never enough to go around. Several
researchers have noted how rivals for
power and prestige may break rules or
invoke the legal system to achieve a
particular advantage or to ruin a
c ompeti tor (19'75: 124-125) .
My data support Collier's and others' views in
this particular respect. A group of elites who generally
belonging to the middle or upper classes and who have
come from the rural areas in order to maintain or achieve
higher statues often stirs issues about language and
ethnicity. These are some Kabul University graduates
and other individuals with foreign training. These
persons are relatively well educated and have achieved
middle class positions in the State system but want
upward mobility. To achieve their goals these men
create new issues concerning ethnicity and language.
Hence, they gather around those individuals and amateurs
who favor their ideas and ln this manner identify themselves
to the government as leaders of the different ethnic
groups with much power. Many such quasi-political
individuals had been granted high official positions in
previous regimes. Some of these people or their fathers
and grandfathers, because of their state jobs, left their
villages and came to the capital or other larger cities
(see diagram #9). Because of the unstable situation of
the previous governments their positions were insecure.

295
Therefore, they wanted. first to maintain their ties with
their relatives and other members of their ethnic group
so that in the event that they lost their tenious positions
they would have a place where they would be accepted
socially. Second, they maintained their lingistic and
ethnic ties with their related groups so that they can
identify themselves and display their power to the
governments as leaders and powerful representatives of
their own people, and thus maintain their positions.
This problem would be alleviated if Afghans would
develop a plan for distribution of these scarce resources
on the basis of the principles of equality and democracy.
Each ethnic or linguistic group should be given
representative seats in all three organs of the State
based upon the ratio of the number of its population.
Certain criteria should be established for the individuals
who achieve the position. For instance, a person,
regardless of ethnic or linguistic affiliation who wants
to become a representative in the National Jirgah (Mali
Jirgah), a minister, or a member of the Supreme Court,
should read, write and speak both languages. This
has been the rule among Swiss, for example. Abilii¥ and l~l

of education can be another criterion for achieving hi~her

positions in the state system.

In cases of private delicts, the resolution of

disDutes by the police and courts broke off inter- and

intra-tribal relationships at the familial, lineage a.nd

296
tribal level. These events at the present time, since
they are very new, 'seem to the people superficial but
in essence they are very iMportant.
The breaking off of relations. whether they are
inter-tribal or intra-tribal, at the familial, lineage
or tribal level, not only separates these levels b~t

rp.sults in lack of cooperation as well. The effects of

the lack of cooperation among the Pushtun people, I
believe, is considered crucial. Lack of cooperation
among them may affect their system of economy and
agriculture. As I mentioned before, the Pushtuns mostly
have a common irrigation system or common canals leading
water from the rivers. This type of irrigation system
requires group action and the cooperation of lineages
and tribes. Making a dike against a shallow river such
as the shamel or establishing a canal bringing water
from a deep river for irrigation, from a long distance
given the level of Afghan technology, are possible only
with the power of individuals and families. Dl this

case lack of cooperation may force the Pushtuns to

reorganize their social organization (to which kind of
reorganization of social organization, needs further
investigation). They might change their pattern of
residence. perhaps from cluster villages to scattered
villages or households along the banks of the rivers,
and near the springs where they may engage in agriculture
for their living; or they might leave the place and

297
emigrate elsewhere within the country. Moreover, they
might change or even quit their pattern of lumber trading
to West Pakistan. For this purpose tne Pushtuns have
developed their own modes of transportation, which involve
hundreds of camels, and men, the owners of the caravans.
If there is a lack of intimacy and cooperation betw.~en

the members of tribes and clans and if they do not have

confidences in each other and if they do not like each
other, they will not make a solid group for trading
purposes to go to Pakistan. It might be safer to say
that the effects of the introduction of the Western
political model and European laws in Afghanistan might
be more clear if anthropologists study the Pushtuns of
Suleiman foothills in the future.
Solving a trouble case based upon Pushtun code
{paying for the damage inflicted or pour in cash or kind,
going n~nawant or taking asylum to the offended party's
house with one's relatives, mediators, arbitrators,
several respected old men or spean zheree (elderly men)
and religious men for asking forgiveness) resolves the
problem clearly and eradicates animosity and rancor
between the parties involved. Evidence (see Table 9)
shows that settlement of trouble cases through police,
courts, lawyers, prosecutors and judges increased the
animosity and rancor among the people, but it is not clear,
at least to me, whether in the first place revenge will
be sought, and if so, what the nature and intensity of

298
the revenge might be. Social scientists may tell us
about it in the future. Moreover, the competition between
people has already reached the level of antagonism, as
was illustrated in the case of election procedures. I
do not know whether the problem will be solved in the
near future or whether it will continue; that is another
problem for further investigation.

299
 FOOTNOTE TO CHAPTER VIII

lSee for more detail Dupree 1973:554-558; and

1976:8).

300
 APPENDIX A

Additional Trouble -Cases

Case No. 15: Death Caused by Smoking

Place: Paktya
Date: 1940
A man (A) traveling from one village to another in
the mountains of the Sleiman Range came to a banda (summer
hut). The traveler was a chalemkash (wbacco smoker). A
asked his host if he had a chalem (smoking pipe). The host
replied affirmatively. It is the custom among the Afghans
when they bring a ~halem to a guest to put fresh water and
tobacco in the smoking pipe in front of the guest. While
the guest was holding the pipe, the host lit the tobacco
and A smoked the pipe. The guest coughed several times and
suddenly became unconscious, soon dying. The body was
properly taken care of and the relatives were quickly
informed. The mourners came and the men of the host's
family accompanied the dead man's relatives carrying the
deceased back to his native village where he was buried.
After three weeks A's relatives accused the dead man's
host of putting poison in the tobacco and claimed that the
poison was the real cause of death. The parties decided
to resolve the trouble-case through maraka. The awel maraka

301
(primary court) of the village was called upon. The
maraka was unable to reach an agreeable solution to the
trouble-case. Both sides decided to call upon the dwahum
maraka (secondary village court). The parties involved
also decided to ask for two marakachian (members of the
village council) from Almara to join the first maraka. A
messenger was sent to them. Because of the distance between
Almara and the dead man's village, the village council
members were provided horses to go there. On the way to
the dead man's village, the two men in addition to their
previous information received sufficient first hand data
from the messenger to make their decision before they
arrived at the village. When the two marakachi and the
messenger got near the village they saw a group of people
awaiting them. The two men decided to stop there and
announce their decision through an act rather than by
speaking. The two marakachi had a chalem (smoking pipe)
with them. One marakachi took the smoking pipe, emptied it,
then poured fresh water into it from the nearby stream. The
other prepared the tobacco while they were observed by the
villagers waiting for them in front of the hamlet. The two
men from Almara took the pipe and both smoked the tobacco.
When they were finished smoking, they walked to the village
and they were greeted by the villagers. The first maraka
and the parties involved understood what they wanted to
imply by their smoking.

)02
 The marakachian ~rom Almara wanted to indicate this:
When a person wants to smoke he should re~resh the smoking
pipe and put in it his own tobacco or, at least, should
oversee another's preparation o~ the smoking pipe for him.
Also, the marakachian showed the people that nothing happened
to them when they smoked. Therefore, the death of '(A) was
just an accident and no one was responsible for it. When
the two men joined the villager's group, their demonstration
and decision was accepted as a just and satisfactory
settlement for the trouble-case; the dead man's relatives
did not want to ask for compensation.

Case No. 16: Murder

Place: Khost
Date: 1970
A driver who owned the truck wanted to go to Tsage,
a village near the Durand Line, to buy Pakistani wheat and
flour and then transport them back to Kabul to sell them
for a pro~it. He had 30,000 A~s. in his pocket. On his way
from the Khost town to Tsage near the Tani Woluswali (a
second degree administrative unit after province) a highway
robber was waiting in ambush ~or him. The robber came from
Tani and he and his brothers had previously murdered several
individuals and were therefore forced to leave A~ghanistan

and live on the other side of the Durand Line among the
Wazirs in West Pakistan. When the truck arrived at the
river, where the highway robber was waiting, the truck driver

30]
was stopped by the rifle-wielding robber. The driver
stopped the truck and the robber took all of his money and
fled. By coincidence~ a jeep on its way to Khost with
several policemen passengersand Woluswal (subgoverner)
arrived in several minutes at the site of the crime. When
the driver saw the Woluswal and the policemen, he ran
after the robber empty handed. The robber was not far away
and he warned the driver not to follow him. The driver
continued running after him. The robber turned around and
shot the driver and then fled leaving behind his dead
victim. The Woluswal and the policemen, watching the scene
closely, could not do anything.
The victim's body was carried to his native village
and was buried. After several months the dead man's
brother and his relatives went to Khost. The case was
reported to the government. A thorough investigation of
the case was conducted. The driver's brother accused the
Tani villagers of helping and accommodating the highway
robber and his brothers in their village. The judge could
not put anybody into jail. He advised the parties involved
to resolve the trouble-case through the traditional way of
conflict settlement. The first maraka was convened.
According to their decision, 20 men from Tani were asked
to take an oath that they had neither helped the murderer
nor had they accommodated him in their village. The Tani
villagers took the oath and the trouble-case was resolved.

)04
Case No. 17= Competition and Confrontation over Election
Place: Paktya
Date: 1964
During the election 1964, two groups of people in
one of the election zones in Packtya Province got involved
in an intense competition. There are 14 tribes in .....the
election zone. Almost half of the people speak Pashto a~~

the other half Persian. The candidates spent a lot C~·

their money and their energy to feed people and br~ng them
in trucks and buses to the polling booths.
Before the proclamation of the New Afghanistan
Constitution in 1964, these people took turns sending
representatives to the Low and High Houses. Upon the en-
forcement of the Constitution in 1964, they began to have
a direct, secret and independent vote and election system.
Because of the competition between the two linguistic groups,
each bloc wanted to win the election. When election days
arrived, groups of people were transported in trucks and
buses and led by their leaders to the polling booths. The
Pashto-speaking bloc violated the law and the candidate
invited people other than the people of the electoral zone
to come to the election zone and vote illegally for him.
Some officials received the message and, while understanding
the situation, either could not control the people because
these people do not have tazkera (identification card) or
they had received bribes from the candidates to allow the
situation to contime. When the candidate of the Persian-

305
speaking bloc saw what was happening, he submitted a
complaint to the governor of the province. The governor
also either did not want to get involved, or could not
control the situation. The latter bloc, upset about the
unlawful behavior of the former bloc, asked their candidate
to resign from the candidacy and they had not gone ~o vote
signifying deep hatred and antagonism toward the government
and the other bloc. The Pashto-speaking bloc candidate won
the election. Relationships between the two blocs before
the proclamation of the constitution was of a friendly
nature and many of them were affines to each other. Since
the enforcement of the new laws, relationships between
the people have changed. They are not as friendly as they
were before.

Case No. 18: Murder

Place: Paktya
Date: 1969
During the election of 1969 two persons in one
election zone were candidates for the Wlosi Jirgah (Low
House). The competition was intense and the people of the
election zone were divided into two blocs - one supporting
an educated man and tIlt! other in favor of an uneducated
individual. During the second day of voting, both candidates
sent the trucks and buses to the villages of their favorite
people to bring them to the polling booths. Because of
competition and rivalry the people, mostly armed with their

306
rifles, came to the Woloswali (second degree administrative
unit after province). The people were shooting rifles in
the air, shouting and singing. The candidates provided
the people with a great amount of rice and meat. Some people
were even given bribes to collect votes for the candidates.
Some voters had an argument over an unimportant iss~e that
turned into a fight and two persons were killed.
Before the declaration of the New Constitution in
1964, the people under study did not have the voting system.
They took turns sending their representatives to Wolosi
Jirgah (Low House) and Meshrano Jirgah (High House).
Nobody could recall this type of conflict with respect to
sending representatives to the houses.
Since many people were involved in the incident and
the danger of confrontation was great, the government
intervened and nobody was elected from the area. The case
has remained unsolved to date.

Case No. 19: Confrontation over Election

Place: Paktya
Date: 1969
1969 was the second election year after the pro-
clamation of the Afghan Constitution of 1964. Once again,
the two Pashto and Persian speaking blocs (see case No. 17)
were competing against each other. This time the competition
was very intense. During the 1964 election, leaders of the
two parties involved had several times met and discussed

307
the problem among themselves. This time they did not meet
and even the educated members of the two blocs did not
want to meet and discuss a solution for the trouble-case.
Moreover, this time the two candidates spent a great
amount of energy and money; the competition became so
intense that the Persian-speaking candidate was warned by
his relatives and friends to withdraw his candidacy because
of the fear of a confrontation and war between the two
blocs. Once again, the Pashto-speaking group invited
people from other electoral areas to come to the capital
of the province and vote for this candidate. The govern-
ment again did not or could not control the illegal voting.
The Persian-speaking candidate and his supporters boycotted
the election signifying hatred toward the government and
the opposing bloc. The Pashto-speaking bloc again sent
their representative to the Low House. The relationship
between the two blocs is worse than ever.

Case No. 20: Conflict between a Wife and a Husband

Place: Paktya
Date: 1970
A Paktya villager in 1970 had a wife and three
children. He then married another woman. The first wife
called upon the village maraka (council of elders) and
complained about the case. The maraka convened and the
wife and the husband were asked about their complaints.
The wife told the maraka the following: there is

J08
a fertile piece of land with a Sultani Karaze (underground
irrigational system). The land has been irrigated by the
irrigational system for many years. Recently an individual
has been coaming off water from the land and irrigating a
piece of dry land with it. I want you people to advise
this person to stop this injustice.
After listening to the woman's complaint, the maraka
asked her husband what his side was. The husband said:
she is right. There is a piece of fertile land and a
Sultani Karaze has been passing through the land for many
years. Because of many rain and snowfalls this year, the
Sultani Karaze flooded. The irrigation system has
sufficient water for the both irrigated and dry land. Do
you think it is unjust if irrigation system water irrigated
both parcels of land?
The maraka discussed the case among then:selves. They
decided that the first wife's land (the irrigated fields)
had priority over the second wife's land and that the
husband should spend more time with her. But, if the Sultruri
Karaze has sufficient water, the husband is allowed to
divert water to the dry land. In other words, if a husband
is strong enough, he can have a second wife. The decision
was satisfactory to both wife and the husband.
In this case two things deserve attention: first,
the people express themselves indirectly and yet very
politely. Second, this case shows a change in attitude on
the part of a wife toward her husband. Until very recent

)09
years a woman was not able to express complaints against
her husband in his presence and before the council of
elders.

Cace No. 21: Conflict Over a Piece of Land

Place: Paktya
Date: 1975
In 1963 a villager who had a piece of land borrnwed
some money from a rich man. The borrower could not pay
fue debt in cash. After talking to his brothers, the debtor
asked the lender for more money. The borrower told the
lender that he wanted to sell his land to him. The land
had been inherited to the borrower from his father. But,
although the brothers had divided their father's property
satisfactorily among themselves, because of the administra-
tive difficulties the reallotment of the inheritance was
not done legally through the court. Hence, the borrower
could not officially sell the land to the lender. The
transaction was a promise made in the presence of some
other villagers. Twelve years later when the land values
had increased, the borrower and his brothers broke their
promises, came to the lender's house and informed him that
they wanted to pay his money and get their land back.
Since everybody in the village knew about the transaction,
the lender did not want the money back. The borrower and
his brothers came several times to the lender's house and
sent several individuals to ask him to return their land.

310
 Finally, the village council was called on. The
maraka discussed the trouble-case. They decided that the
land should go to the lender, but they asked him to help
the borrower and give him 10,000 Afs. Since the lender
did not want to give back the land because it would have
had damaged his honor in the village, he accepted ~he

decision and paid the money. Thus, the trouble-case was

resolved through traditional dispute settlement procedures
and the decision made by the maraka was accepted by both
parties.

Case No. 22: Confrontation Over Trees

Place: Paktya
Date: 1970
In the Spring of 1970 in a village in Paktya a man
planted trees on the bank of a common irrigation system.
The trees were not planted properly; they were too near
the water. The irrigation system belon~to the whole
tribe. While the villagers were cleaning the canal, two
young men uprooted newly planted trees because they were
in the way. The owner of the trees heard about this and
the next day, early in the morning, he went to where the
villagers were still cleaning out the canal. When he asked
who had uprooted the trees, nobody responded. He got mad
and cursed the whole group. Finally, the two young men
approached the owner of the trees and admitted their deed.
The owner of the trees kicked them, but the young men did

311
not respond. When the young villagers went home that
evening, they told their fathers and uncles what had
happened. Several days later the young men's fatherS
informed the village about the case. One day, most of the
villagers went to where the trees had been replanted.
The owner of the trees was also informed to go to the
place. The situation was tense and there was a fear of
confrontation. The owner of the trees, realizing the
situation, asked his brothers and his other close kin to
arm themselves and go and hide in ambush in a garden near
the canal. When the villagers came to the scene, the two
young men's fathers and uncles were very angry at the owner
of the trees. They complained to the villagers about what
had happened three days before. Some other viliagers
favoring their views also got mad at the tree-owner. At
that moment, one tree owner's relatives, noting the danger
of a confrontation, asked an elderly man from the opposing
party to go and unroot the trees not planted in the right
place. The elderly man took off his shoes, walked into
the water and unrooted the trees. The incident was over
and the trouble-case was resolved.

Case No.2): Theft and Imprisonment

Place: Paktya
Date: 1954
A villager was working as a laborer for a landlord
of another tribe. One night the laborer took the landlord's

)12
rifle and fled to his native village. The case was
referred to the police department and to the court because
the thief came from a powerful tribe and they did not want to
resolve the trouble case through maraka. The thief was
sentenced to prison for three years.
The thief died in the prison because of an illness.
The deceased's body was carried to his native village and
buried there. The dead man's relatives have been seeking
revenge because, according to them, the death of their
relative was caused ·by the imprisonment. The case is still
not resolved. The dead man's relatives want recompense.

Case No. 24: Conflict Over a Loan

Place: Paktya
Date: 1965
An individual sold some wood to a truck owner for
2,000 Afs. Several years passed, but the truck owner did
not pay the money. The wood seller sent several people
to the truck owner to pay his debt but the truck owner
refused.
One day, when the truck owner's nephew was going from
Khost to Gardez, the wood seller saw the man in a tea shop
waiting for a bus. The wood seller waited until the man
walked out of the shop because, according to the Pashtun's
custom, an individual cannot force another individual to
go with him or comply with his orders while he is sitting
on another individual's p'roperty. When the truck owner's

313
nephew went out of the tea shop, the wood seller asked the
man to follow him. Since he was threatened by rifle and
was empty handed, he had no other alternative. The wood
seller teek him to his own village and kept him there for
several days. The wood seller also sent a messenger to
the truck owner to return his money. The truck owner's
sons went to the capital city of Kabul and found a close
relative of the wood seller, captured him and brought him
to their own village. They then infermed the weod seller
that they had a relative of his.
Both sides decided to settle the dispute through the
maraka. Four persons were chosen, two by .one side and twe
by the ether. The maraka convened and the case was discusse~

The maraka decided the following: the truck owner sheuld

pay the weed seller's meney. Because he had kidnapped
the truck owner's nephew and taken him te his heuse, the
weed seller should pay a sharm (shame) of twe oheep and also
go te the truck owner's house and apelogize for his .offense.
The decision was accepted by beth sides and the case settled.

Case Ne. 25: Cenflict over Bus Fare

Place: Paktya
Date: 1970
A bus driver was driving frem Gradez te Khost.
Several persons near to the Tsata Kandaw asked the driver
to step the bus and give them a ride te their nearby village.
The driver had no empty seats and could not give them a ride •

.314
The villagers forcefully got onto the top of the bus where
the traveler's luggage was placed. The driver stopped the
bus near these people's village and asked for their fare.
They refused to pay the fare. A fight ensued and the
driver was hit with an axe. The injured driver was carried
to the nearby hospital. After he recovered and we~t home,
the opposite side sent a messenger to the driver's father
and brothers expressing their willingness to resolve the
dispute based on the Pashtun's tsale (code). A maraka was
called upon and the decj.&ion made b~r them was announced to
the involved parties. The maraka asked the wrongdoers to
pay the topake (medical expenses) and a sharm (shame) of
one cow. The wrongdoers bought a cow and together with
several of their elderly relatives came to the driver's
father's house. They also offered the driver the topaki.
Since the driver's father is a rich man he returned the
money back and only accepted the cow to save his honor.
The cow was slaughtered and the villagers were invited to
share the meal with the driver's family and relatives as
well as with the wrongdoers and their elderly relatives.
After serving their meal the wrongdoers apologized for
their wrongdoing in the presence of the villagers. The
trouble-case was resolved.

Case No. 26: Death by Accident

Place: Paktya
Date: 1956

315
 A man climbed a mulberry tree to collect leaves and
twigs for his camel. At the moment, a passenger whom he
knew also came to the place. After exchanging greetings,
the passenger wanted to leave. The man on the tree asked
him to spend the night with him. The passenger sat under
the shadow of the tree and leaned his loaded rifle ,against
the tree trunk. While the camel was eating leaves and
twigs, a small branch of the tree touched the rifle and
the rifle went off. The man in the tree was hit with the
bullet, fell from the tree and died. The dead man's body
was buried. Several days later the dead man's relatives
sent a messenger to the passenger and accused him of causing
the death of his relative since he was shot with the
passenger's rifle. The passenger denied the accusation and
the maraka (village council) was called. The maraka met
and asked the parties involved what their complaints were.
The dead man's relative told the maraka that the passenger
was responsible for the death of his relative because he
was shot with his rifle and the dead man's relative wanted
compensation.
While the maraka members were watching and listening
to the accused's answer, he took his rifle, loaded with
bullets, and leaned it against the wall. He left the rifle
for several minutes; nothing happened. In essence, the
owner of the rifle was indicating that a loaded rifle would
not go off unless someone touches it and fires it. While
the passenger demonstrated all this, he did not talk at all.

316
 The members of the council of elders turned their
faces toward the dead man's relative to understand his
point. The dead man's relative took the same rifle, un-
loaded it and then pulled the chamber but the rifle did
not go off. In this manner, without speaking, the dead
man's relative showed that if the rifle had not be~p loaded,
it would not have gone off. After the maraka heard both
sides, they asked the parties involved to leave while they'
make their decision. The maraka said that both the camel
and the rifle had caused the man's death. The camel
belonged to one side and the rifle to the other side.
Therefore, the dead man's nake or khoon (blood-price) should
bs paid by both sides. Since the nake for a man was 60,000
Afs., they divided the amount in half. The owner of the
rifle was asked to pay )0,000 Afs. The decision was
accepted by the parties and the trouble-case was resolved.

Case No. 27: Marriage Trouble-Case

Place: Paktya
Date: 1~62

A man (A) wanted to marry a girl to his son. The

boy's mother went to girl's parent's house and saw the girl.
She returned to her house and reported to her husband. The
boy's father approved of his wife's idea. Therefore, he
sent his wife again to talk to the girl·s mother. Since
the boy's father was a rich and famous man, the girl's
mother wanted her daughter to marry the boy. The girl's

)17
mother brought some khone (sweet) and gave it to the boy's
mother. This type of sweet-giving signifies a primary
agreement of the marriage. It is an informal agreement
between the women of the parties involved.
After a few days another individual (B) sent his wife
,
to the girl's parents house to ask if they would gLve their
daughter to her son. The woman promised her daughter to
B's son also. The girl's and the boy's fathers both were
informed by their wives. Both sides agreed upon the
marriage of the girl to the boy. The father of the boy
and his close relatives went to the girl's father's house
and decided upon the marriage of the girl to his son and
they were given sweet and a sten (a handkerchief with a
needle made by the girl herself). The exchange of sweet
between two parties and sten given to the boy's party
signifies an official engagement among the Pashtuns.
After several days (A) reported the case to the
government and four persons were put in jail from the second
party (B). The official advised both sides to resolve the
trouble-case through customary law. Parties involved
agreed and four marakachi (member of village council) from
Almara were invited to resolve the case. The maraka
convened and told (A) until the prisoners were released
from jail. they did not want to discuss the trouble-case.
(A) went to the police department and court and asked for
the prisoners release. Since his wish signified a solution
of the problem, the government released the prisoners from ~

318
 The maraka aSked the parties to present their legal
points. (A) said that khone (exchange of sweet) is the
same as if a person takes a moshtake (small amount of grain)
to a mill in order to be first on the line. Among the
Pashtuns the person who takes his moshtake first is ahead
of everybody. According to (A) a gift of sweets iQ the case
of engagement was analogous to this rule. Therefore, (A)
wanted the girl for his son.
(B) said "A is rich and powerful and he overrides my
rights." He claimed that marrying a girl to someone's son
is like buying cloth from a shopkeeper: after the cloth is
cut, the purchaser owns it. According to B, after the
ceremony of sweet exchange and giving a s~en to the boy's
father, the engagement is official. To markachian
the statement made by B seemed logical and in accordance
with Pashtun marriage code. Therefore, A lost the case
and the trouble-case was settled.

Case No. 28: Conflict Over Land

Place: Paktya
Date: 1974
A sick man borrowed some money from an individual
from his native village. When his sickness became serious,
the lender went to the patient's home and asked him if he
wanted to sell his land to the money lender so that his
debts would be paid. The borrower replied affirmatively.

)19
To make the deal official the lender went to the court and
talked to the judge about the case. The judge told him to
take two men with him as witnesses and that the sick man
should acknowledge in the presence of the witnesses that
he wanted to sell his land to the lender. The lender and
two other men from the same village went together ~o the
sick man's house. The sick man told the witness to report
to the judge that he, indeed, wanted to sell his land to
the lender. The witnesses reported back to the judge and
the judge signed the necessary papers. Now the land was
officially sold to the lender.
The sick man's relatives knew nothing about the case.
After the sick man died and was buried, the dead man's
relatives learned of' the transaction. They sent a messenger
to the money lender and informed him that they not only did
not want to sell him the land, but, also, they wanted
compensation for their honor since they felt their relativ~

had been cheated before his death.

A maraka was convened. The maraka decided that the
land could not be sold to anybody, unless an individual's
relatives do not want it. The lender's money was returned
to him and the trouble-case was resolved.

)20
Case No. 29: Homosexuality and Feuding
Place: Khost
Date: 1975
A group of homosexuals kidnapped a handsome student
guest from a wedding reception while he was watching the
dancers and listening to the musicians. The student
, was
threatened with a pistol and knife and warned to follow the
kidnappers and stay with the leader of the group in his
house overnight. The boy was taken there and released after
two days. The case was reported to the government by the
school officials. The leader of the kidnappers was sentenced
to jail for four years.
When the boy went home he told his father and uncle
about what had happened to him. A few weeks later, the
prisoner, guarded by two soldiers, was walking in the town.
The student, his father and his uncle saw the prisoner
talking to his brother and his friends. The boy's father,
armed with a rifle together with his son and brother, walked
close to the prisoner and shot several bullets at him. The
prisoner was seriously injured. The injured shouted at his
brother and told him that he was seriously injured. He told
his brother to kill the student's father. His brother
withdrew his setaw (knife) from his pocket and tore open
the abdomen of the student's father and inflicted several
other injuries to him. The injured father died on the spot.
The prisoner was taken to the hospital and there he died
of his injuries.

321
 After the death of the two individuals, the situation
became more tense and the student's relatives wanted
revenge, but as yet no further retaliation occurred.

322
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334