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Abstract

Revisiting the US-led counterinsurgency campaign in Afghanistan, we examine to what extent the concepts of legitimacy of the Taliban and the US counterinsurgents showed congruence with pre-existing Afghan notions of legitimacy. We move beyond dominant approaches of social contract theory and materialist legitimacy by using a threefold model of legitimacy to assess the different concepts of legitimacy. Both the Taliban and the US, we argue, diverged markedly from historically developed notions of legitimate rule. The article demonstrates that counterinsurgents need to be aware of and adapt to local norms. Moreover, we point towards relevant norms in the case of Afghanistan.
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Civil Wars
ISSN: 1369-8249 (Print) 1743-968X (Online) Journal homepage: https://www.tandfonline.com/loi/fciv20
Concepts of Legitimacy: Congruence and
Divergence in the Afghan Conflict
Wolfgang Minatti & Isabelle Duyvesteyn
To cite this article: Wolfgang Minatti & Isabelle Duyvesteyn (2019): Concepts of
Legitimacy: Congruence and Divergence in the Afghan Conflict, Civil Wars, DOI:
10.1080/13698249.2020.1686876
To link to this article: https://doi.org/10.1080/13698249.2020.1686876
© 2019 The Author(s). Published by Informa
UK Limited, trading as Taylor & Francis
Group.
Published online: 08 Nov 2019.
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Concepts of Legitimacy: Congruence and Divergence
in the Afghan Conict
Wolfgang Minatti and Isabelle Duyvesteyn
Institute for History, Leiden University, Leiden, The Netherlands
ABSTRACT
Revisitingthe US-led counterinsurgency campaign in Afghanistan, we examine to
what extent the concepts of legitimacy of the Taliban and the US counterinsur-
gents showed congruence with pre-existing Afghan notions of legitimacy. We
move beyond dominant approaches of social contract theory and materialist
legitimacy by using a threefold model of legitimacy to assess the dierent
concepts of legitimacy. Both the Taliban and the US, we argue, diverged markedly
from historically developed notions of legitimate rule. The article demonstrates
that counterinsurgents need to be aware of and adapt to local norms. Moreover,
we point towards relevant norms in the case of Afghanistan.
Introduction
In 1996, only months before the Talibans takeover of central governance,
their leader Mullah Omar stepped onto the roof of a mosque in the
Afghan city of Kandahar, dressed in a cloak allegedly worn by Prophet
Mohammed, which he had removed from its near-by shrine. He pro-
claimed himself Commander of the Faithful, a title which drew on
Afghan history and custom, placing him in the tradition of Prophet
Mohammed and Afghanistans founding father, Ahmed Khan Durrani,
who was the last person to claim that title (Kamel 2015,p.77).Omar
sought to legitimise the Talibans ascent to power and their governance
over Afghanistan (Armajani 2011, p. 202). More than ten years later, the
United States decided to implement a counterinsurgency strategy to
stabilise the country and legitimise the newly instated central govern-
ment. However, the instruments chosen to do so top-down state-
building based primarily on security provision in combination with the
establishment of security forces and kinetic missions diered from the
Talibans approach as security and democratisation were put before
tradition and custom (Egnell 2010).
CONTACT Wolfgang Minatti wolfgang.minatti@gmail.com
CIVIL WARS
https://doi.org/10.1080/13698249.2020.1686876
© 2019 The Author(s). Published by Informa UK Limited, trading as Taylor & Francis Group.
This is an Open Access article distributed under the terms of the Creative Commons Attribution-NonCommercial-
NoDerivatives License (http://creativecommons.org/licenses/by-nc-nd/4.0/), which permits non-commercial re-use, distri-
bution, and reproduction in any medium, provided the original work is properly cited, and is not altered, transformed, or
built upon in any way.
This juxtaposition illustrates the dierence in the US and the Talibans
notions of legitimacy during the Afghan conict. More specically, following
Eckstein (1992, p. 188), who has argued that a government will tend to be
stable if its authority pattern is congruent with the other authority patterns of
the society of which it is a part, it raises the question: to what extent did the
Afghan understanding of the central governments legitimacy show congru-
ence with that of the US counterinsurgents and the Taliban insurgents during
the Afghan conict from 2009 to 2014? This timeframe is chosen to cover the
period of the Talibans resurgence and the United Statesdoctrinal approach
to counterinsurgency until the end of major combat operations and the
drawdown of most counterinsurgency forces.
The article adopts a comprehensive framework of legitimacy to analyse
how legitimacy was understood by the dierent actors of the Afghan conict.
It argues that both the Taliban insurgents and the United States showed only
limited congruence with the historically established understandings of legiti-
macy in Afghanistan. However, due to their employment of local norms and
habits, the Talibans notion of legitimacy achieved greater resonance than the
US counterinsurgents.
The relevance of this research is threefold. First, it illustrates the importance
of an analytical framework of legitimacy that goes beyond social contract
theory, to grasp how local norms inuence the legitimation of power.
Contrary to the currently dominant approach in the literature (Kasr2015,
Schlichte and Schneckener 2015, Duyvesteyn 2017), we demonstrate that for
a thorough understanding of legitimation processes, both material and imma-
terial sources of legitimacy have to be considered. Second, by illustrating the
diverging notions of legitimacy, the case of the US counterinsurgency in
Afghanistan contributes to explaining the diculties of the United States in
establishing stable governance and the relative success of the Taliban insur-
gency. Third, it serves as a reminder to future statebuilding or counterinsur-
gency campaigns to not only be aware of, but also adapt to, local patterns of
legitimacy. Where intervention forces are either unwilling or unable to credibly
adapt to some norms, intervention should be reconsidered.
This article will proceed in four steps. First, the literature on legitimacy in the
context of civil wars and insurgencies is discussed. Second, we debate the
concept of legitimacy and introduce the theoretical model by David Beetham
(1991b) which we will use to analyse legitimacy. Beetham proposes a threefold
model of legitimacy consisting of legality, justiability and consent. Third,
based on Beethams theory, we will unpack and discuss the understanding of
the central governments legitimacy, which has historically developed in
Afghanistan, and compare it to those of the US counterinsurgents and the
Taliban. For each element of legitimacy, similarities and dierences will be
examined. Last, we draw conclusions and provide suggestions for further
research.
2W. MINATTI AND I. DUYVESTEYN
Legitimacy in Civil Wars
The failure of the United States in the Afghan counterinsurgency campaign to
defeat the Taliban and establish a functioning central state has provoked
ample discussion. Some scholars have argued that the counterinsurgency did
not go far enough and more intervention would have been necessary to
achieve a stable, democratic Afghanistan (Jones 2010, Felbab-Brown 2013).
Conversely, others have advocated for less intervention, warning against the
disruptive impact of foreign intervention and the neglect of local practices
(Suhrke 2011, Gopal 2014).
A third group has pointed towards the theoretical aws inherent in US
counterinsurgency doctrine and thought, inviting a rethinking of intervention
practices (Fitzsimmons 2008, Egnell 2010, Ucko 2013, Gventer et al.2015,
Gawthorpe 2017, Greene 2017). Scholars have argued that the statebuilding
and counterinsurgency eorts were essentially unidirectional, with the inter-
vention forces considering Afghan people merely as recipients of democracy
rather than the driving force behind it(Tadjbakhsh and Schoiswohl 2008,
p. 253). Hence, traditional norms and voices were ignored in favour of
Western expectations (Coburn 2011, Stewart and Knaus 2012). Considering
the other side of the coin, scholars have also centred on the Taliban insur-
gents and scrutinised their governance (Giustozzi 2019, Farrell and Giustozzi
2013, Johnson 2013), which narratives they utilised in their communication
(Johnson 2017), what services they provided (Jackson 2018) and how these
inuenced the peoples opinion about the Taliban (Weigand 2017, Jackson
and Weigand 2018).
Within this debate, the concept of legitimacy has received increasing atten-
tion (Egnell 2010, Nachbar 2012,Gawthorpe2017,Weigand2017). Scholars have
commonly acknowledged that establishing legitimacy, the moral obligationto
comply with a power relationship (Hurd 1999, p. 387), is a key element for the
success of any actor. However, the notions of what constitutes legitimacy and
how it can be achieved have to date been underdeveloped at best.
First, the debate has predominantly adopted a utilitarian understanding of
legitimacy, considering it mainly a function of social contract theory, demo-
cratisation or good governance (Levi et al.2009, Rothstein 2009). Second,
legitimation is commonly understood as a unidirectional causal relationship
where government action alone determinates whether it is believed to be
legitimate by a population (Schoon 2017, p. 738). More recently, scholarship
on rebel governance has challenged these assumptions. Dening rebel gov-
ernance broadly as organizing civilians for a public purpose(Kasr2015,
p. 21), this research focuses on the relations between violent non-state actors
and the population they control, scrutinising both ideas and practices of
governing of various rebel groups around the world (Reno 1999, Weinstein
2007, Mampilly 2011, Arjona et al.2015).
CIVIL WARS 3
Some scholars have indeed found evidence for the positive eects of the
practice of social contract and service provision on rebelslegitimacy
(Grynkewich 2008, Flanigan 2008,Förster2015). However, others have chal-
lenged the unidirectional view of legitimacy implicit in the concept of the social
contract, emphasising instead the relational character of legitimacy, where
every legitimation process is understood as an interdependent bargain
between ruler and ruled (Malthaner 2015, Bruijn and Both 2017, Podder 2017,
Schoon 2017,Worrall2017). Again others have highlighted the importance of
ideology within rebel governance and the role of ideational elements of
legitimacy next to utilitarian considerations (Mampilly 2015,Schlichteand
Schneckener 2015, Suykens 2015,Kalyvas2015). Last, scholars have argued
that most utilitarian explanations of legitimacy are derived from a historically
distinct, state-related, European context, making it questionable to what extent
these lessons apply to modern civil wars, non-European settings and non-state
actors (Duyvesteyn 2017, p. 679, Lake 2010,p.270273).
The US Field Manual (FM) 324 on counterinsurgency, which was devised
in 2006 and guided the eorts of the US counterinsurgents in Afghanistan,
claims that legitimacy is the main objectiveof any counterinsurgency cam-
paign (US Army 2006,p.121). It follows the above-mentioned utilitarian and
unidirectional approach, arguing that legitimacy can be constructed by social
engineering (Cromartie 2012, p. 105,Gawthorpe 2017, p. 841). However, it is
unknown to what extent, or whether at all, it is possible to change the
preferences and beliefs of a population by the provision of services, given
that the literature has shown that the top-down imposition of norms hardly
works (Scott 1998).
Instead, we need to adopt a more comprehensive lens that goes beyond
utilitarianism. This enables us to look at legitimacy as a relational concept and
to acknowledge the diculty of changing local preferences, especially within
a limited time frame. The question for every intervener then becomes
whether its understanding of legitimacy is compatible with local norms. We
seek to answer this question by unpacking the historically developed notion
of legitimacy in Afghanistan and juxtaposing it with the understanding of
legitimacy of the US counterinsurgents and the Taliban.
The Concept of Legitimacy
The question of what makes power relations rightful can be traced back
through the centuries in philosophical debates about legitimacy to Hobbes,
Locke or Rousseau, if not earlier (Beetham 1991b, p. 8). In contrast to this
normative approach to legitimacy, which tries to establish a universal, ration-
ally defendable notion of rightfulness, empirical research is considerably
more recent and was founded by Max Weber. It asks the question: under
what circumstances do certain people consider a power relationship to be
4W. MINATTI AND I. DUYVESTEYN
rightful (Barker 1990, p. 11). Weber roots this acknowledgement of right-
fulness in peoples beliefs, arguing that power is legitimate if people believe it
to be rightful (Weber 1978). He distinguishes between three ideal-type foun-
dations of legitimate authority: the traditional foundation where authority is
legitimised by the peoples belief in the sanctity of long-existing norms; the
legal-rational foundation where authority is legitimised by the believed leg-
alityof norms; and the charismatic foundation where authority is legitimised
by the belief in the extraordinary qualities of an individual (Weber 2002,
p. 124, Matheson 1987, p. 207). Furthermore, each type of authority creates
a distinct exercising of authority and a dierent kind of compliance (Weber
2002, p. 122).
While Webers approach has been widely accepted in subsequent scholar-
ship on legitimacy, it has equally been subjected to criticism. One of the most
salient criticisms comes from Beetham (1991b, p. 8) who argues that Webers
conceptualisation of legitimacy insuciently grasps the complex concept.
For one, Webers foundations of legitimacy are far from exhaustive, inade-
quately representing all possible forms of legitimate governance. Moreover,
the dierentiation between the legal-rational and traditional foundation
seems fabricated as in both cases, legitimacy essentially relies on rules
which dier only in their juridical practice. All three foundations are, addi-
tionally, reductionist as they limit the concept of legitimacy to a single layer,
equating legitimacy solely with Legitimitätsglaube, the belief in legitimacy
(Weber 2002, p. 122). This, however, fails to explain why certain rules or
qualities are believed to be legitimate (Beetham 1991a, p. 40) and what role
the population plays their validation (Barker 1990, p. 54, Beetham
1991a, p. 41).
Hence, Beetham (1991b) proposes a conceptualisation of legitimacy,
which goes beyond simple belief and comprises three elements: legality,
justiability and consent. Legality means power has to rest on certain estab-
lished rules, in terms of both its acquisition and its exercise. These rules may
be unwritten, as informal conventions, or they may be formalized in legal
codes or judgements(Beetham 1991b, p. 16). This legality creates a frame of
reference and conveys respect for rules which is a condition for any social
order or settled expectations(Beetham 1991b, p. 69).
Justiability indicates that these rules have to be justiable in terms of the
beliefs of the ruled (Beetham 1991b, p. 17). This criterion splits into two
elements (Beetham 1991b,p. 70). First, the source from which a rule is derived
has to be seen as authoritative. Such a source might be external to the power
relationship such as divine will, the laws of science, or internal, either appeal-
ing to a societys past (tradition) or rooting the source of power in its present
(popular sovereignty). Second, the rules have to be considered to serve the
populationsgeneral interest.
CIVIL WARS 5
Consent means that the power relationship has to be conrmed by the
subordinates through public actions. Such actions are important because
they confer legitimacy on the powerful, not because they provide evidence
about peoples beliefs(Beetham 1991b, p. 91). In other words, whenever
people engage in public actions that demonstrate consent to their rule, it
does legitimise the powerful, regardless of their subjective reasons for it.
According to Beetham, all three elements have to be present for any power
relation to be legitimate. However, it is worth noting that legitimacy is not
a dichotomous concept but rather a matter of degree, thus deciencies in
one of these elements do not necessarily strip a power of all legitimacy but
might only impair it (Beetham 1991b, p. 20).
In this article, we adopt Beethams threefold model of legitimacy as it
allows us to look beyond a utilitarian understanding. We test the theory
against the evidence from the case of the legitimation of central governance
during the conict in Afghanistan. The Afghan populations historically
grounded notion of a central governments legitimacy will be contrasted
with the understanding of both the US counterinsurgents and the Taliban,
unpacking each regarding Beethams three elements of legitimacy. Thus, the
analysis proceeds in three steps and assess legality, justiability and consent
in analytically separate categories. This comparison allows us to determine
the extent to which the dierent notions of legitimacy showed congruence
and divergence.
Such an analysis requires a certain degree of generalisation. First, the
assessed notions of legitimacy are hardly as homogeneous as they appear
in this analysis. Societies are usually made up of a myriad of micro-societies
with their own histories, norms and expectations(Gawthorpe 2017, p. 843),
not least Afghanistans fragmented and tribal society where identities and
societal norms vary starkly between its various ethnicities, clans and commu-
nities (Rubin 2002, Giustozzi 2009). For example, the Pashtun tribessocial
code, the Pashtunwali, diers markedly in some norms from that of other
Afghan ethnicities. Furthermore, norms dier both geographically between
rural and urban areas and depending on the level of governance. However,
for this analysis, we try to distil an aggregated and generalised version of the
Afghan populations historically grounded notion of the central govern-
ments legitimacy. Equally, the counterinsurgency forces comprised numer-
ous states and operations, which all pursued dierent approaches towards
counterinsurgency. We specically focus on the United States for the analysis,
given its leading role in the counterinsurgency campaign (Egnell 2013, p. 9).
On the insurgent side, the Taliban were the largest and most inuential
group, which is why we centre on them (Giustozzi 2017, p. 13).
Second, notions of legitimacy change over time and are naturally dynamic.
We do not attempt to sketch unalterable elements of the Afghan population
but rather try to capture a snapshot of a historically grounded notion of
6W. MINATTI AND I. DUYVESTEYN
legitimacy that prevailed in large parts of Afghanistan at the time of analysis
but had been subject to change before and will undoubtedly keep changing
in the future.
Hence, while we acknowledge that each actors notion of legitimacy is
inherently local, diverse and time-contingent, we try to distil ideal types in
order to make the concept of legitimacy analytically comparable and to
advance our argument. The analysis will work with these generalised ideal
types and only point towards time and space contingencies where signicant
changes occurred.
Legitimacy in the Afghan Conict
Afghanistan is commonly seen as the antithesis to an eective state. It is
apersistent cliché, as Roy (2004, p. 173) asserts, that Afghanistan is by
nature an unruly country, which regularly reverts to anarchy, civil war and
tribal feuds. While arguably true from an imperialist viewpoint, these notions
ignore the fact that Afghanistan had a relatively stable central government
from 1880 until the communist revolution in 1978 with the notable exception
of the overthrow of King Amanullah Khan in 1929 (Roy 2004, p. 173). Hence,
a specic notion of state legitimacy certainly developed throughout the past
century in Afghanistan. In their counterinsurgency campaign, the US and its
allies tried to establish a new central government in Afghanistan, challenged
both by the Talibans idea of an Afghan state and, even more importantly, by
the historically grounded ideas of the Afghan people. The following analysis
will contrast these dierent notions of legitimacy and look for congruence
and dierences between them.
Legality
This section compares the dierent conceptions of legality, the norms that
form the basis for the legitimacy claims of the actors. We aim to determine
the extent to which the US counterinsurgentsand Talibans notions of
legality overlap with pre-existing notions in Afghanistan.
Local Pre-existing Notions of Legitimacy
When examining historically established rules of power in Afghanistan, we
can usefully draw on Eddy (2009, p. 6) who identies three legal grounds for
legitimacy in Afghanistan. These are custom, Islamic law and positive law,
which can also be seen to have developed in this chronological sequence.
For much of Afghanistans history, power was considered a dynastic
privilegewith the Afghan population largely detached from questions of
legality (Bareld 2010, p. 5). One customary rule of power was hereditary rule
as the country experienced dynastic rule throughout its history, from various
CIVIL WARS 7
Turko-Mongolian dynasties to the foundation of the Pashtun Durrani dynasty
in 1747. A second customary norm emerged out of frequent elite rivalry:
continuous military victory against competing actors would ensure the leg-
ality of the powerful (Roy 1990, p. 20). As Bareld (2010, p. 72) notes, all that
rulers and their successors needed to achieve was the restoration of public
order, and perhaps put down a rebellion or two.
The rules of power changed with the First Anglo-Afghan War (18391842)
when the British were driven out of the country by a popular uprising,
proving the power of the population. Consequently, Afghan rulers sought
to rest their claims on more than hereditary rule and military prowess and
started to ground their power on the populations norms (Bareld 2010,
p. 133). Hence, rulers increasingly invoked Islam and its legal tradition. One
of the rst actions that any new Muslim ruler took was to have the khutba, the
Friday Islamic sermon at the main mosque, read in his name(Bareld 2010,
p. 73). Especially with the emergence of the modern state in 1880, Islamic law
became a common rule of power for the Afghan state (Bareld 2010, p. 158).
In the wake of the third Anglo-Afghan war in 1919, Afghanistan gained
independence from British oversight and King Amanullah Khan imposed the
countrysrst constitution, grounding state power in positive law for the rst
time. Since then, Afghanistan revised its constitution several times but, as
Nixon and Ponzio (2007, p. 27) note, experience with constitutional govern-
ance did not extend much beyond urban centresand played a minor role for
large parts of the Afghan population. After the overthrow of the Taliban in
2001, the countrys last constitution before its decades-long civil war served
as a basis for the current constitution which was enacted in 2004 (Rubin 2004,
p. 5). However, a 2004 survey found that a majority of rural Afghans had not
heard of the new constitutional process and that some had no knowledge of
any constitution (FIC 2004). Hence, at the time of the resurgence of the
Taliban, positive law had its roots in Afghan understandings of state legality
albeit without the pedigree and spread of custom and Islamic law.
United States
In contrast to the diverse historically established conceptions of legality in
Afghanistan, the US counterinsurgents saw legality exclusively in terms of positive
law. The original US counterinsurgency manual FM 324 states that the presence
of the rule of law is a major factor in assuring voluntary acceptance of
a governments authority and therefore its legitimacy(US Army 2006,p.122).
Indeed, the only acceptable end-state in a counterinsurgency campaign is a state
government which has respect for preexisting and impersonal legal rules(US
Army 2006,p.122). As such, the US counterinsurgents campaign based the
central governments legitimacy on positive law in the form of Afghanistans 2004
constitution. This viewpoint was for example adopted by General McChrystal,
then commander of the counterinsurgency forces, who emphasised at the outset
8W. MINATTI AND I. DUYVESTEYN
of the counterinsurgency campaign that operations should be in accordance
with international and national law(McChrystal 2009).
Notably, as Egnell (2010, p. 292) asserts, counter-insurgency shares the
fundamental problem of external state-building [. . .] as inherently normative
activities.As we further argue below, this normative ambition translated into
a Western-biased view of legitimacy. The US counterinsurgents considered
power as legitimate when based on the Weberian rational-legal foundation,
where power is acquired and exercised according to formally spelt-out laws
and procedures (Weber 1978, Egnell 2010, p. 286). While they did emphasise
the importance of local norms and tradition in several governance projects on
a local and regional level (Goodhand and Hakimi 2014), on a national level
they remained true to the legal, Western-inspired democratisation process
initiated after the 2001 invasion (Eikenberry 2013, p. 67).
1
Taliban
The Taliban movement emerged out of Islamic Schools on the Afghan-
Pakistani border where they had been taught a fundamentalist version of
Sunni Islam called Deobandi (Maley 2001, p. 14). When they took over
Afghanistan in 1996 and established the Islamic Emirate of Afghanistan
(Jones 2010, p. 82), its leadership consisted almost exclusively of Islamic
students, becoming the the rst government run by clericsin Afghanistan
(Bareld 2010, p. 263). Although the Taliban went through fundamental
ideological changes when regrouping as an insurgency in the years following
their displacement, the insurgents remained largely faithful to their interpre-
tation of Islam (Giustozzi 2008).
TheimportanceofIslamiclawintheTalibans rules of power is not only visible
in the name of their shadow state, but also in their communication. For example,
in his 2009 Eid message, Mullah Omar stated that the Islamic Emirate of
Afghanistan considers [the] establishment of an independent Islamic regime as
a conducive mechanism for sustainability of religious and worldly interests of the
country(Rashid 2011). Another speech accredited to Mullah Omar read that the
Taliban believe in reaching [an] understanding with the Afghans regarding an
Afghan-inclusive government based on Islamic principles(Ruttig 2013). Omar
equally emphasised the Talibans commitment to sharia law, promising that they
would implement Shariah rules in the light of the injunctions of the sacred
religion of Islam(Johnson 2017, p. 27). As such, we see that the Taliban grounded
their power in Islamic law (Nojumi 2002, p. 152, Armajani 2011,p.198199).
Analysis
The notions of legality of the US counterinsurgents, as well as of the Taliban, had
historically been established in Afghan society to varying degrees. Regarding
custom, it can be argued that the initial victory of the intervention forces against
the Taliban in 2001 might have unintentionally corresponded with the Afghan
CIVIL WARS 9
customary rule of military victory, contributing to the counterinsurgentslegiti-
macy and forfeiting the Talibans. However, as the Taliban resurged from 2006
onwards, the deteriorating security situation and the US counterinsurgents
inability to defeat the Taliban created a vicious cycle that not only undermined
the United Stateslegality in this regard but also strengthened the Talibans.
Regarding Islamic law, with more than ninety-nine per cent of Afghans con-
sidering themselves Muslims, the Talibans Islamic rules of power certainly struck
a chord with the population, most importantly in Afghanistansruralparts
(Johnson 2017, p. 27). Regarding positive law, the United Statesreliance on
constitutionalism also resonated with Afghanistans political history(Suhrke
2008, p. 633), especially in urban areas, but it was clearly not as widely shared
as were customary or Islamic rules. After all, throughout the twentieth century
constitutional law was hardly ever fully implemented. While the 1964 constitu-
tion, for example, envisioned a centralised organisation of the state, power was in
fact anything but centralized, pointing to a disjunction between legal and
ground-level realities(Rubin 2004, p. 8). Certainly, the United States recognised
the need to adhere to local norms on the outset of the counterinsurgency
campaign in order to advance security, opportunity and justice notjustin
Kabul, but from the bottom up in the provinces(The White House 2009).
However, while such programmes played out in the context of local and regional
governance, they only marginally inuenced the United Statesnotion of legality
of central governance. Hence, the concepts of legality which the United States
invoked were not as deeply entrenched within Afghan society as those of the
Taliban. Moreover, neither of them focused on custom although this legal ground
would have arguably found most resonance among the Afghan population in the
context of a largely absentee state.
Justiability
This section focusses on justiability, the arguments used to justify power,
and compares historical Afghan beliefs about justiable central governance
to how the United States and Taliban tried to justify it. We consider, rst, the
authoritative source the dierent notions of justiability invoke and, second,
the general interest they declare to represent.
Local Pre-existing Notions of Legitimacy
Several authoritative sources of rules of power can be discerned throughout
Afghan history. The most important external source was, as previously
touched upon, Islam. The religion had a pervasive function in Afghanistan,
penetrating almost all aspects of social life (Roy 1990, p. 30). More impor-
tantly, Islam completed culturally the need for national unication of the
numerous Afghan ethno-tribal populations(Nojumi 2002, p. 3). Hence, the
wiser Afghan rulers recognized this fact by showing appropriate respect for
10 W. MINATTI AND I. DUYVESTEYN
Islam, because the tenets of the Islamic faith [. . .] have always had a stronger
hold over the population than any secular ideologies expounded by the state
(Maley 1987, p. 711). Where rulers ignored Islam, most notably the communist
party in 1978, they regularly faced broad resistance. Next to this external
authoritative source, Afghan state power was commonly grounded in the
internal source of tradition. We see such traits in the general tendency to
convey power to those who promised the continuation of the Afghan way of
life, respected its various communities, and refrained from social and eco-
nomic changes (Bareld 2010, p. 173).
When examining the general interest the Afghan states legitimacy was
historically grounded in, it is useful to draw on Roy (2004) who nds three
criteria which the Afghan state had to full to be seen as legitimate. First, the
state had to act independently from foreign powers. This anti-colonialist view
was rooted in a form of Afghan nationalism, dened by pride in a country
that was never colonized and a people that repeatedly has driven out foreign
invaders, which emerged whenever the country was faced with external
threats (Nojumi 2002, p. 2, Suhrke 2010, p. 243). This notion surfaced follow-
ing the rst Anglo-Afghan War when Afghan rulers started to portray them-
selves as the necessary preservers of the nations independence and Islamic
religious identity against potential aggression(Bareld 2004, p. 276).
Second, the state had to appear as a broker between dierent tribes and
clans while keeping away from the communitiesway of life (Roy 2004,
p. 173). Indeed, any stable central government refrained from imposing social
or economic change on the Afghan people to avoid interference with local
habits (Bareld 2010, p. 173). Whenever it did anyway, like the moderniser
Amanullah in 1929 or the communists in 1978, it met resistance.
Third, the state had to channel funding, not least international aid which
poured into Afghanistan from the early nineteenth century onwards, to
provide services to the Afghan population (Roy 2004, p. 173). Since for
many Afghan people their own informal institutions better maintained long-
term local order than any distant government could, government action
always remained minimal, focussing on tax collection, conscription and the
provision of internal and external security (Bareld and Nojumi 2010, p. 42).
Nevertheless, upholding this minimum was vital.
Roy (2004, p. 173) argues that these three elements of general interest of
Afghanistans central governance can be relatively abstracted from the local
level because, paradoxically, realpolitics usually unfolded at the local level. As
such, requirements of central governance became a common denominator,
which met the basic needs of the various communities while refraining from
interfering too much with any of them. Consequently, Bareld (2010,p.342)
observes that any successful ruler will need to convince the Afghans that he
will not be beholden to foreigners, even as he convinces these very same
foreigners to fund his state and military. All this, one could add, while keeping
CIVIL WARS 11
a delicate balance between too little and too much interference with local
communitiesways of life.
United States
As previously touched upon, the original FM 324 stated that legitimacy is
primarily a function of the rule of law which stems from a constitution and
[. . .] laws adopted through a credible, democratic process(US Army 2006,
p. 122). A government is considered legitimate by a population if it derives
its power from the governed(US Army 2006,p.121). Thus, the US counter-
insurgents followed a liberal-democratic tradition, grounding its rules of
power in an internal authoritative source, namely popular sovereignty. This
premise not only nds overlap with the counterinsurgentsoverarching
strategy of population-centric counterinsurgency but was also reiterated by
General McChrystal who stated that [s]uccess requires a stronger Afghan
government that is seen by the Afghan people as working in their interests
(McChrystal 2009).
When looking at the general interest the United States was seeking to
promote, the key element was good governance. While FM 324 acknowl-
edges that cultural backgrounds result in dierent notions of legitimacy, it
identies eective governance, the provision of services and security, as
a universal antidote to any grievances the population might hold
(Fitzsimmons 2008, p. 342). This is explained by a simplistic view of human
motivations where grievances are seen to solely stem from material wants
(Cromartie 2012, p. 104). As Lake (2010, p. 275276) observes about counter-
insurgency doctrine, [l]egitimacy [. ..] is expected to follow from the ability of
an actor be it the insurgents or the state to provide essential public
services, especially security. This attitude has its roots in modernisation
theory which sees history as a determined series of socio-economic stages
with liberal democracy as its end-stage and assumes a natural longing among
all people towards that end (Jahn 2007, p. 95, Fitzsimmons 2008). Indeed, as
Egnell (2013, p. 11) argues, liberal and democratic values are seen as inher-
ently usefuland Western sets of beliefs and values taken for granted. By
presenting itself as a technical and value-neutral handbook on operational
conduct, such underlying assumptions are easily overlooked but in fact, FM
324 is profoundly political and ideological(Gventer et al.2015, p. 362).
2
Hence, the provision of services constituted a centrepiece of US counter-
insurgency practice and was primarily organised via the Provincial
Reconstruction Teams (PRTs) which were designed to expand central gov-
ernance into the rural regions of the country. Individual PRTs were run by
one or more member states of the International Security Assistance Force
(ISAF), combining military and civic operations to enable the provision of
services in a secure environment (Fishstein and Wilder 2011, p. 22).
12 W. MINATTI AND I. DUYVESTEYN
Taliban
The Taliban grounded their rules of power in the authoritative source of Islam
and the divine will of God. This was well illustrated in bestowing the Talibans
initial leader Mullah Omar the title Commander of the Faithful, making
compliance with his leadership religiously obligatory(Bareld 2010,
p. 261). It is worth pointing out, however, that the Talibans Islamist inter-
pretation diered to some degree from traditional Afghan interpretations.
Before the 2001 invasion, their ideology had been identied as an idiosyn-
cratic mix of Deobandi Islam and local Afghan customs (Bareld 2010, p. 261).
Although many rules were based rather on Afghan and especially Pashtun
tradition than Islam, other aspects of their Islamist interpretation deviated in
some fundamental social practices from traditional Afghan lifestyle, for exam-
ple the prohibition of women in the public sphere or the banning of music
(Johnson 2011, p. 256). After the beginning of the insurgency, the Taliban
downplayed their earlier demands for strict adherence to Salast Islam and
implied that if given power again they would not be as intolerant of other
sects(Bareld 2010, p. 262). For example, while Mullah Omar called for a real
Islamic regimein his 2010 Eid message, he also emphasised that the Taliban
would not be a monopolizing powerbut that [a]ll ethnicities will have
participation(Rashid 2011). However, as Jackson (2018, p. 20) notes, such
announcements were only rarely followed through and the Talibans rigid
ideology was still widely implemented.
Regarding general interest, the Taliban insurgency based their legitimacy
on two core elements. First, the Taliban portrayed themselves as local and
nationalist Afghan resistance ghters against foreign rule. [T]he themes of
resistance and independence are noticeable in nearly every form of Taliban
propaganda, many of the Talibans communiqués portraying the Afghan
people as being victimised and deled by the foreign invaders who co-
opted the incumbent government to which the Taliban refer solely as pup-
pet regime(Johnson 2017, p. 30). As Berdal and Suhrke (2018, p. 72) note in
their study on the Norwegian PRT, legitimacy was gained by ghting against
what was seen a foreign occupation force. Moreover, Taliban rhetoric often
drew parallels between the British, the Soviet Union and the United States
along with calls to repeat past victories by defeating the United States just
like the previous great powers who had invaded the country (Kamel 2015,
p. 75). To ensure the credibility of their claim as indigenous ghters against
foreign occupiers, the Taliban, for example, withdrew foreign ghters from
the front lines in Afghanistan from 2006, who they had started to recruit to
reinforce their numbers in the preceding years (Farrell and Giustozzi 2013,
p. 857). Also, their initial irtation with the global Jihad movement was ceased
not to alienate domestic Afghan audiences (Ruttig 2012, p. 123124).
Second, the Taliban emphasised their ability to provide necessary services
for Afghan communities, both security and justice. The mobile sharia courts
CIVIL WARS 13
that were roaming around Taliban controlled territory were identied as
a crucial element of Taliban shadow governance early on (Rubin 2007,
p. 60, Giustozzi 2012). Given the inert and oftentimes corrupt state courts,
the Talibans swift and ecient sharia courts were easily one of the most
popular and respected elements of the Taliban insurgency by local commu-
nities(Johnson 2017, p. 186). Notably, the Talibans service provision
expanded beyond dispute settlement in controlled territories and included,
for example, the maintenance of schools and clinics (Jackson 2018).
Analysis
When looking for congruence between Afghanistans historically grounded
justiability and the counterparts of the United States and the Taliban, several
similarities as well as discrepancies are discernible. First, regarding the author-
itative source, the US counterinsurgents did invoke neither Islam nor Afghan
tradition as authoritative sources but instead the liberal conception of pop-
ular sovereignty. However, given the fragmentation of Afghan society and the
dominance of tribal over national loyalties, it is doubtful to what extent such
a unied people existed in the rst place (Rubin 2002). As such, it failed to nd
common ground with pre-existing beliefs of the authoritative source, espe-
cially in the rural parts of the country. Conversely, the Taliban justied their
power in terms of Islam, which clearly resonated with Afghan people. While
their specic interpretation of Islam might not have been very popular
among many Afghans and arguably just as foreign to Afghanistan as
a liberal mindset, on an underlying level, claiming Islam to be a source of
authority struck a chord in many parts of the Afghan population.
Second, regarding general interest, the United Statesjustication of ser-
vice provision overlapped with local Afghan beliefs. However, its actual
implementation undermined this overlap. The quality and eciency of the
PRTs suered from inadequate funding and human power. Consequently, as
Berdal and Suhrke (2018, p. 67) show for the Norwegian PRT, many PRTs could
do little more than monitor development eorts and occasionally conduct
attacks against the Taliban. This impaired both the creation of a secure
environment and eective service provision. Although established to expand
the central governments reach, the PRTs often carried the ag of a particular
foreign state (Egnell 2010, p. 296), and were consequently criticised for
becoming parallel governance structures of the intervention forces
(Fishstein and Wilder 2011, p. 23).
Furthermore, by choosing the PRT approach, the US counterinsurgents vio-
lated other criteria of Afghan notions of general interest. First, the expansion of
central governance by ISAF in the form of PRTs repeatedly interfered with local
communities (Bareld and Nojumi 2010). As Petrík (2015, p. 171) notes, many PRT
projects were considered to run contrary to local needs and many communities
experienced revenge strikes from the Taliban when engaging with PRT
14 W. MINATTI AND I. DUYVESTEYN
services. Second, the 2009 surge of counterinsurgency forces all over the country
made them increasingly visible and the longer the foreign forces were stationed
in Afghanistan, the more they were perceived as an occupation force (Eikenberry
2013, p. 68). This undermined Afghanistans historically grounded general interest
that expects the state to act independently from foreign powers.
This gave rise to feelings of xenophobia and anti-colonialism among
Afghans, which the Taliban were able to capitalise on since their portrayal
as a local force ghting against foreign occupiers resonated with local beliefs.
The Taliban tried to credibly appear as indigenous ghters by cancelling
some of their connections with foreign actors and heavily employing natio-
nalistic and unifying rhetoric (Farrell and Giustozzi 2013, p. 857). However, it is
worth emphasising that their Deobandi interpretation of Islam was also
widely seen as foreign, undermining the Talibans justication of power.
Regarding service provision, the Taliban utilised their cultural knowledge
and weakness of the central governance to achieve a certain overlap with
Afghan notions of general interest. However, their way of providing services
simultaneously infringed on the Afghan criterion of non-interference with
local communities. Especially the high level of coercion the Taliban employed
to ensure compliance, the harsh judgements of the sharia courts and the
strict regulations regarding social life stood in stark contrast to the traditional
role of Afghan governments (Johnson 2011, p. 256).
To summarise, both the United States and the Taliban showed some
overlap in their notions of justiability with local notions but simultaneously
undermined them with other traits of their justiability. Nevertheless, the
United Statesnotion of justiability showed even less congruence with
Afghan justiability than the Taliban, given how deeply entrenched both
Islam and anti-colonialism were in Afghanistan.
Consent
This section analyses which forms of consent, the acts that confer legitimacy, have
been prevalent among the Afghan population. These will be compared to the
concepts of consent oered by both the US counterinsurgents and the Taliban.
Local Pre-existing Notions of Legitimacy
Especially in the rural regions of Afghanistan, consent with the powerful was
commonly a matter of group processes rather than individual determination
as tribal and ethnic groups take primacy over the individual(Bareld 2010,
p. 19). Nojumi (2002, p. 7) identies three groups which were important actors
in national politics. First, communal chieftains, in consultation with their local
jirgas, elder councils, conferred legitimacy on a central government. Second,
the endorsement of religious leaders was equally important. Third, in urban
areas a middle class developed at the beginning of the twentieth century
CIVIL WARS 15
whose political movements conferred legitimacy to the state. These groups
convened in the loya jirga, a traditional, semi-democratic institution of
a nation-wide council of elders, which was repeatedly called upon to conrm
a new ruler throughout Afghan history and hence, conferred legitimacy to
rulers since the early days of the Afghan state (Nojumi 2002, p. 28).
A second form of consent was introduced to Afghanistan in 1931 when an
electoral system was rst established (Coburn and Larson 2013, p. xi).
However, it was repeatedly dislodged and reinstated and only in the decade
following the 1964 constitution were two relatively free elections held. Even
then, the elected parliament only had limited power and almost no legisla-
tion was adopted (Suhrke 2008, p. 632).
United States
According to FM 324, one of six indicators for legitimacy is the level of popular
participation in or support for political processesand another is the [s]election
of leaders [.. .] in a manner considered just and fair(US Army 2006,p.121). As
Greene (2017, p. 570) argues, US counterinsurgents understood democratic
governance via free elections as the essential form of consent. For example, in
his 2009 assessment of US strategy, General McChrystal implied that successful
elections would signicantly improve the Afghan governmentsstandinginthe
eyes of the population (McChrystal 2009).
Moreover, FM 324 assumes that good government will in itself build up
legitimacy(Cromartie 2012, p. 104), seeing eective governance and the
provision of services as the centrepiece of the United Stateseorts. As
such, the utilisation of provided services by a population was understood as
a form of consent and expected to confer legitimacy to the state.
Taliban
The Taliban relied on a large degree of coercion to guarantee compliance
(Jackson 2018, p. 25). As such, most acts of compliance and the usage of
Taliban services were based on fear and lack of alternatives rather than
conviction of the Talibans cause. Nevertheless, it has been noted that
Afghans repeatedly chose to settle their dispute with Taliban courts rather
than state courts due to their perceived swiftness and eectiveness (Weigand
2017, p. 375). The Taliban encouraged this in their rhetoric on the corruption
and ineciency of the incumbent governments justice system, portraying
themselves as an honest and Islamic alternative (Johnson 2017, p. 26). Also,
the payment of taxes, which the Taliban imposed in controlled territories, can
be seen as a form of quasi-voluntary consent (Levi 1989, Jackson 2018, p. 23).
Analysis
We see that the US counterinsurgents had greater overlap with pre-existing
notions of consent than the Taliban. Although relatively free parliamentary
16 W. MINATTI AND I. DUYVESTEYN
elections existed in Afghanistan only for roughly a decade, this period is often
regarded as a golden periodthanks to its relative peacefulness (Suhrke 2008,
p. 633). Thus, the United Statesemphasis on elections certainly fell on fertile
ground among large parts of the population, becoming visible in the immense
turnout of over 70 per cent in the rst post-Taliban election in 2004 (Suhrke
2008, p. 637). However, at the time of the implementation of counterinsur-
gency strategy, elections either lacked real competition or were highly fraudu-
lent, especially the 2009 presidential election which resulted in widespread
discontent with the electoral system. Moreover, many Afghans [.. .] did not
understand elections as imputing their government with the legitimacy that
leads men and women to risk their lives to defend.(Greene 2017,p.570).
Notably, the United Stated had also re-instated the tradition of the loya jirga
to decide on an interim government in 2002 and adopt a new constitution in
2004. While this body seemingly corresponded with Afghan notions of con-
sent, it failed to give traditional actors a possibility to participate as it was
composed of warlords and political elites chosen by the USA not elected
through free elections as is the tradition of Loya Jirgas(Qazi 2010,p.493494).
As such, the counterinsurgents degraded the loya jirga to a rubber-stamp
rather than utilising the traditions democratic potential (Schmeidl 2016). At
the time of analysis, the highly centralised constitution had undermined tradi-
tional voices as almost every government ocial was centrally appointed
(Rubin 2018).
Last, the state historically did not provide many services for Afghans and
their utilisation played a minor role in showing consent with state power
(Bareld and Nojumi 2010, p. 42). While the role of service provision was clearly
prioritised by the United States and its system of PRTs, it is not at all clear
whether Afghan people attached the same importance to it. Moreover, it is
worth noting that this implicitly assumes the ability of a third party to create
legitimacy for another power relation. However, as Berdal (2009, p. 98) argues,
there are two kinds of legitimacy in post-conict settings, as a third-party
counterinsurgency not only strives to establish the incumbent governments
legitimacy but has also legitimacy of its own. It is questionable whether it is
possible for a third party intervention force to transferlegitimacy to an
incumbent government, casting doubt on the assumption that the utilisation
of services provided by the coalition forces through the PRTs actually legit-
imised the Afghan central government (Duyvesteyn 2017,p.677).
The Talibans notion of consent showed little overlap with Afghan people.
While civilian elder councils were sometimes established on a provincial level,
such institutions served more as a link between the Taliban and the popula-
tion than as an actual decision-making body (Jackson 2018, p. 26). The usage
of the Talibans dispute settlement systems and the paying of taxes arguably
conferred a certain legitimacy on the insurgents. However, these actions of
CIVIL WARS 17
consent were not only largely coerced but service provision was historically
also not an important way of consent.
Hence, both the United Statesand the Talibans notion of consent showed
little congruence with Afghanistans historically grounded notions although
the US counterinsurgents achieved a somewhat greater resonance.
Concepts of Legitimacy: Congruence and Divergence
In this article, we have criticised the dominant approach in the current
literature on rebel legitimacy and called for a perspective on legitimacy that
goes beyond social contract theory and material considerations. To that end,
we have adopted Beethams(1991b) model of legitimacy consisting of the
three elements legality, justiability and consent. This framework has allowed
us to examine to what extent the notions of legitimacy of both the US
counterinsurgents and the Taliban in Afghanistan showed congruence with
its historically grounded notions during the implementation of the US coun-
terinsurgency strategy from 2009 to 2014. This analysis is summarised in
Table 1.
We have shown that both warring parties in the Afghan conict struggled to
nd common ground with local norms and beliefs. The US counterinsurgents did
largely overlook traditional rules, justications and modes of consent, and
imposed a Western-centric conception of state legitimacy on the country.
However, Western ideals of statehood and legitimacy were hardly suited for
a country with distinct historical experiences. Although the 2014 revised FM 324
certainly shows that the US experiences in Afghanistan initiated a rethinking
process in which this bias was implicitly addressed, it was never implemented in
Afghanistan. Moreover, it remains questionable whether a foreign force, regard-
less of its actions, would be able to overcome the strong Afghan norm of
independence from foreigners. Nevertheless, it is worth noting that there were
certain overlaps. Constitutionalism was a common trait of both understandings
of legitimacy, while arguably a weak one in Afghanistan. Service provision
featured equally in both conceptions. However, not only did the counterinsur-
gentsineciency in its implementation undermine this common feature, it also
ignored the limited expectations that Afghans had from the central state in this
regard. Therefore, paradoxically, the counterinsurgents focused on delivery
where the population had least expectation, reinforcing the material aspects of
the social contract rather than immaterial characteristics.
Furthermore, it has become apparent that although it was a domestic
Afghan insurgency, the Talibans notion of legitimacy did not overlap with
historically grounded notions in every regard. While they certainly showed
more congruence with local Afghan beliefs and norms than their adversary,
their extreme ideology as well as the intrusive, coercive nature of their
governance was at odds with historical Afghan notions.
18 W. MINATTI AND I. DUYVESTEYN
Table 1. Notions of the central governments legitimacy.
Justiability
Legality Source of authority General interest Consent
Afghan pre-existing notions of legitimacy Customs
Islamic law
Positive law
Islam
Tradition
Independence from foreigners
No local interference
Service and security provision
Loya jirga
Elections
United States Positive law Popular sovereignty/Democracy Service and security provision Elections
Using services
Taliban Islamic law Islam Independence from foreigners
Service and security provision
Using services
CIVIL WARS 19
Future research should build on the ideas presented here. They form a rst
attempt at a more detailed unpacking of the dierent approaches to the
process of legitimation of power. We propose as further avenues for investi-
gation, rst a more profound questioning of the universality of the social
contract approach, so dominant in Western conceptions of legitimacy and so
central to its counterinsurgency eorts. We should explore how notions of
legitimacy develop and change over time while paying attention to its
diverse and local character.
Second, we would invite further testing and possible renement of the
threefold analytical framework, which should also be applied to other insur-
gencies and statebuilding eorts. This would further our understanding of
the relational processes of legitimation in conict environments and shed
more light on the variety and diversity of norms that make up legitimate
government in dierent contexts.
To conclude, we have argued that the only chance a third-party counter-
insurgency campaign might have to create legitimacy for an incumbent
government is by adapting to local norms and values. We pointed towards
some of the relevant norms in the case of Afghanistan. While legitimacy
might very well be the main objectiveof any counterinsurgency campaign,
a one-sided and biased conception certainly will not help much in achiev-
ing it.
Notes
1. This tendency towards a Western-biased view of legitimacy markedly decreased
in the revised 2014 edition of FM 324, published after the cessation of the
counterinsurgency campaign in Afghanistan and never implemented there.
Instead of limiting itself to rational-legal rules, it adopts a more ideational
standpoint, arguing that [w]ho a population accepts as legitimate is dependent
on the norms and values within that particular population(US Army 2014,
p. 19).
2. The 2014 revised FM 324 is much less prescriptive than its predecessor and
adopts a vaguer, open-ended notion of legitimacy, weakening the link between
service provision and legitimacy although failing to oer tangible alternatives. It
holds that [i]t is not enough for the host-nation government to be simply seen
as eective and credible. The governmental structure must be justiable to the
population and that justication must be based on the populations norms and
values(US Army 2014,p.19).
Disclosure statement
No potential conict of interest was reported by the authors.
20 W. MINATTI AND I. DUYVESTEYN
Notes on contributors
Wolfgang Minatti was a Master student at the Institute for History at Leiden University
in the Netherlands. He is currently a PhD candidate at the European University
Institute in Florence
Isabelle Duyvesteyn is Professor of International Studies at the Institute for History at
Leiden University in the Netherlands
ORCID
Wolfgang Minatti http://orcid.org/0000-0002-5374-9950
Isabelle Duyvesteyn http://orcid.org/0000-0003-3468-4511
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I take advantage of political and geographic variation to explore the underlying dynamics of rebel governance during the Greek Civil War. Two key findings emerge from this analysis. First, the political identity of rebel groups appears to have had a clear impact on the form of governance implemented. Communist rebels set up expansive institutions of rule that stressed mass mobilization and were heavily bureaucratized. In contrast, non-communist rebels relied instead on traditional local structures. Whereas communist rebels sought to incorporate local groups and communities into a centralized system, non-communist rebels were content to just collaborate with them. Second, when holding the type of rebel group constant, I find that the temporal and spatial variation in levels of territorial control affected both the depth and character of rebel governance. The more extensive the geographical scope of control exercised by a rebel group, the fuller the expression of its political identity on the institutions of rebel rule. Conversely, limited and tenuous territorial control correlates with more openly coercive practices.