Is TALIBAN 2.0 CLOSING THE GATES TO IJTIHAD AGAIN?

• Author: Jensen, Erik G.

1. INTRODUCTION 76 II. TALIBANISM: CUSTOM, RELIGION, AND PURE FIAT 76 III. PERFORMANCE OF THE TALIBAN: SUCCESSES, CHALLENGES, AND FAILURES 78 A. Assessing the Performance of the "State" 78 B. Significant Challenges and Failures 81 IV. INCENTIVES, CARROTS, AND STICKS 84 A. Core Impediments to Incentives Working 84 B. Carrots 85 C. Sticks 87 V. CONCLUSION 88 I. INTRODUCTION

   Ijtihad is the independent interpretation of problems in Islam that are not precisely covered by the Quran or the Hadiths. The original 'closing of the gates to ijtihad' was an attempt to limit this high interpretive act to the most qualified Islamic scholars. (1) So, it was not an entirely negative effort. However, over time, the colloquial 'closing the gates' has obtained a negative connotation associated with inflexible, literal, and regressive interpretations of the sacred texts of Islam. The title of this Article is inspired by the colloquial, not the academic context.

   Inflexibility is a hallmark characteristic of the Taliban, most recently made manifest by its near-total ban on women's education through the following edict on December 20, 2022:

   To all Governmental and Private Universities May Allah give you success in all jobs .... Based on the decision of cabinet meeting # 28 year 1443 HQ this is a notice to all, that the female education is suspended till further notice. We hope you implement this and confirm to the Ministry of Higher Education. Shaikh Mawlai Nida Mohammad Nadim Higher Education Minister (2) This article explores the degree of flexibility in Taliban 2.0's approach to governance. Is Taliban 2.0 simply the old nectar of Taliban 1.0 in new vessels that survive twenty years of military conflict and systemic transitions? Or is there evidence of change in its seemingly changeless persona and praxis? After reviewing the customary, religious, and what may be termed 'pure fiat' foundations of Taliban practice, this Article will assess the change in and continuity of the performance of Taliban 2.0 in the context of both its modest successes and significant challenges and failures. Finally, this Article will analyze incentives--both carrots and sticks--that the international community can employ and, in some cases, already is employing to stimulate better performance by the Taliban. Currently, the Taliban's ideological leadership in Kandahar appears intractable, begging the question of whether there is anything the United States and its allies can do to leave ajar the doors of ijtihad.

2. TALIBANISM: CUSTOM, RELIGION, AND PURE FIAT

   Strictly defining Talibanism is academically difficult. The Taliban is frequently referred to journalistically as a group that follows a "harsh interpretation" of Islamic law. (3) In fact, Talibanism is a mixture of custom, religion, and pure fiat, with pure fiat unsupported by the authority of either custom or religion. It is impossible to fully grasp Taliban practice without understanding the Pashtun custom and culture in which it is embedded. Confusion about the interaction of Islamic law with customary law is common--despite considerable friction between the two. (4) While Talibanism is derived to a certain extent from Deobandism, a conservative form of Hanafi Islam founded in the nineteenth century in India, much of its practice combines its Hanafi roots with Pashtun custom, Salafist Islam (following exposure to and collaboration with al-Qaeda since the 1980s), and pure fiat in what has been described as an "unwritten mixture of puritanical beliefs wrapped up in Islamic sharia." (5)

   To the extent that the Taliban received religious education, this occurred in madrassas in Pakistan and, more recently, in Afghanistan. The quality of that religious education was rudimentary and flawed. (6) Indeed, when Egyptian jurists visited Mullah Omar, the Taliban's founder and former leader of Afghanistan, in 2001 and unsuccessfully tried to convince him that Islamic law did not mandate the destruction of the Bamiyan Buddhas, these jurists left Afghanistan highly critical of the Taliban's knowledge of Islam: "[B]ecause of [me Taliban's] circumstances and their incomplete knowledge of jurisprudence they were not able to formulate rulings backed by theological evidence." (7) Apart from religion, custom obviously did not support the destruction of the Bamiyan Buddhas, which were carved in the sixth century and peacefully co-existed with customary life for 1,500 years. Instead, the 'authority' that led to the destruction of these iconic sculptures was the Taliban's reasoning by pure fiat.

   Therefore, Taliban justice involves placing the Taliban--not tribal elites or non-Taliban religious figures--in charge of all interpretation of sharia law questions, including those involving Pashtun customs. In other words, absent any religious or customary precedent, pure fiat disguised as sharia or custom acts as a viable alternative--one based on coercive force.

   Sometimes, this trilogy of variables--custom, religion, and pure fiat--is conflated to justify the legitimacy of virtually any of the regime's views and policies. Take, for example, the frayed logic of Taliban triumphalism. This triumphalism represents a kind of victor's morality, tied to a theory of Pashtun exceptionalism following the 2021 withdrawal of U.S. forces, which is interpreted as Allah's 'ratification' of the Taliban. (8) Proponents of Taliban triumphalism, such as the Taliban's Minister of Higher Education, Nida Mohammad Nadim, argue that the Taliban's victory over the United States and its allies was due to the superiority of Pashtun customs. (9) Compared to non-Taliban Arab communities, which the Taliban sees as either compliant with or conquered by Western interests, the Taliban's historical victories over 'infidels' (the British Empire, the Soviet Union, and now the United States and NATO) validate its religious convictions. (10) This provides Taliban 2.0 further insulation from critique or advice from outside Islamic scholars on the 'proper' practice of Islamic traditions. (11) Consequentially, Taliban triumphalism supports an ideology that is largely inflexible in the face of external pressure, especially as it concerns some of the most regressive aspects of Taliban rule. So, while the international community perceives 2021 as a rather pyrrhic victory--the Taliban regime now faces mounting internal governance issues such as economic growth, fiscal impropriety, and food insecurity--Taliban leadership remains emboldened.

3. PERFORMANCE OF THE TALIBAN : SUCCESSES, CHALLENGES, AND FAILURES

   1. Assessing the Performance of the "State "

      A useful set of criteria on which to judge Taliban performance is a blend of statehood characteristics derived from the 1933 Montevideo Convention and Weberian requirements. Under the traditional Montevideo view, a state requires a permanent population, defined territory, government, and the capacity to conduct international relations. (12) Here, with the first two criteria of permanent population and defined territory clearly met, the Taliban should primarily be judged on its ability to maintain a government and function within international society. From the far less formalistic Weberian perspective, successful states monopolize the legitimate use of force within their territory--typically by providing some public services, maintaining a framework for economic activity, collecting taxes, and gaining recognition by other states. (13) Both perspectives offer critical insights into the Taliban's performance and its ability to maintain its rule in the face of mounting challenges--both domestic and international.

      Regarding the criterion that the Taliban control the territory, Afghanistan has always been a transit state with a modest capacity to protect its borders. Parts of Afghanistan today are controlled by pockets of the National Resistance Front of Afghanistan (NRF) and the Islamic State Khorasan (IS-K). (14) But by and large, the Taliban does control the territory. Likewise, the Taliban does generally monopolize the legitimate use of violence and provide security. This is important for the Taliban's domestic legitimacy, as many of the major issues with U.S. and NATO forces centered upon their inability to end the violence, as well as the methods by which they pursued counterterrorism operations for years. (15) Today, partly due to the United States' pullout, levels of violence are much lower.

      While the Taliban controls the territory, many layers of insecurity have worsened over the last year, not least of which is food insecurity. The World Food Program asserted in January 2023 that ninety percent of the Afghan population does not have sufficient food. (17) That is up from eighty percent before the Taliban takeover. (18) Taken as a whole, this criterion for statehood--improved provision of basic services--has proved elusive under the Taliban. The Taliban does not have the human resources or the international support to deliver basic services, a central function of any legitimate state.

      Providing a framework for economic activity is a third distinct challenge. The economy has shrunk by twenty to thirty percent since August 2021, and inflation is rampant--as much as thirty to seventy-five percent on basic commodities. (19) However, revenue collection at border crossings has been surprisingly strong despite a steep drop in imports. This is a positive aspect of the performance of the Taliban. But it also is a stunning indictment of the previous regime's level of corruption. Outside groups estimate that as much as $767 million was paid annually in bribes at border control points and as much as $650 million at checkpoints within Afghanistan during the previous regime. (20) The dismantling of bribery checkpoints and centralization of tax collection is a success of Taliban 2.0, as it was in the 1990s when Taliban 1.0 came to power, reduced banditry, and secured trucking routes. (21) Additionally, there are credible...