Is there legal pluralism in Afghanistan? Notes on injustice and access to justice (original) (raw)
Related papers
Access to Justice and Human Rights in Afghanistan
2013
In anthropological and legal literature, the phenomenon termed 'legal pluralism' has been interpreted as a co-presence of legal orders which act in relation to their own 'levels' of referring 'fields'. The Afghan normative network is generally described in terms of pluralism, where different normative systems such as customs, shari'a (Islamic law), state laws and principles deriving from international standard of law (e.g., human rights) coexist. In order to address the crucial question of access to justice, in this article, I stress the category of legal pluralism by introducing the hypothesis of an inaccessible normative pluralism as a key concept to capture the structural injustices of which Afghans are victims. Access to justice can be considered a foundational element of every legal project. Globally, the debates concerning the diffusion and application of human rights develop at the same time ideologically, politically, and pragmatically. Today in Afghanistan, these levels are expressed in all their complexity and ambivalence. It is therefore particularly significant to closely observe the work done by the Afghanistan Independent Human Rights Commission and to discuss the issue of human rights by starting from a reflection on what might be defined a socio-normative condition of inaccessibility.
Revisiting Critical Legal Pluralism: Normative Contestations in the Afghan Courtroom
This paper revisits the concept of critical legal pluralism, which treats the individual as a site of normativity with the capacity to create legal knowledge. To help operationalize the usage of critical legal pluralism, I propose a methodological approach that places the individual's ability to makes choices along a continuum. On one side of continuum, legal pluralism can be viewed as facilitating fully discrete choices that ascribe to one legal order or another. On the other side, the ability to make individual choices is curtailed because of the presence of a hegemonic legal order. This simple continuum helps to shed light on the complex considerations that affect individual choices, which in turn affect how various legal orders are legitimated. The paper then considers how critical legal pluralism can enrich the discussion on the legal system of Afghanistan, focusing on interviews with two Afghan justice actors: a former judge and an active defence lawyer.
7. Sharia and national law in Afghanistan
Sharia Incorporated, 2010
Legal pluralism is the hallmark of Afghan legal reality. Afghan law is a combination of Islamic law, state legislation, and local customary law. This chapter traces the origins of that plurality and shows that the lack of clarity regarding the relationship between these different sources of law and the absence of guidelines as how to resolve conflicts between them is still causing many problems in Afghanistan today. Despite the existence of official law, i.e. the formal legal system established under the provisions of a constitution, the socio-legal reality is not reflected by it, and the law in the books does not represent the norms that actually govern the lives of the majority of the population. For ordinary people and villagers, who form the majority of the populace, tribal/customary and Islamic law are more significant and actually better known than any state legislation. As a result, in Afghanistan it is not the implications of sharia or sharia-based law that, at least for the moment, prevents the application and implementation of international legal and human rights standards, but the lack of a system by which the rule of law may be established so that the legal system is capablepractically, socially, politicallyof guaranteeing and enforcing laws effectively. Although the Government of Afghanistan is committed to carrying out its duties imposed not only by Afghanistan's domestic laws but also by the country's international obligations, the greatest challenge to action is the lack of security and the fragile peace balance in the country.
State and non-state justice systems in Afghanistan : the need for synergy / Ali Wardak
2011
extend my sincere thanks to John Braitwaite, Amy Feinman and the staffs of the Journal of International Law and the Journal of Law and Social Change at the University of Pennsylvania for their very helpful comments on earlier versions of the Article. My heartfelt thanks also go to my wife, Safora, and to our children-Omar, Zohra, and Hossai-for their affectionate support while working on this Article.
Rebel rule of law: Taliban courts in the west and north-west of Afghanistan
ODI Briefing Note, 2020
• Taliban courts are becoming increasingly widespread across Afghanistan. They were seen by those interviewed as more accessible and easier to navigate than state courts, as well as quicker, fairer and less corrupt. However, those living in Taliban areas do not have much choice but to pursue their claims through Taliban courts. • The Taliban have used their courts not only to delegitimise the state and erode state justice provision, but also to disempower and replace customary dispute resolution. This has undoubtedly helped them to consolidate control over territory and compel civilians to follow their rules. • Understanding this system is becoming increasingly important, particularly for the prospect of peace talks and any intra-Afghan negotiations that may commence. It has implications for the future of justice in Afghanistan as well as the fate of legal norms and rights embodied in the current Afghan constitution. • Questions remain, including around how women, government supporters and ethnic minorities experience Taliban justice. Further field research is also needed in other areas of the country, on criminal and capital cases, and on Taliban official policies and judicial norms. This will only become more relevant as intra-Afghan negotiations progress.
Correspondence: Debating the Rule of Law in Afghanistan
International Security, 2018
In "Why U.S. Efforts to Promote the Rule of Law in Afghanistan Failed," Geoffrey Swenson's inaccurate description of one project, the U.S. Agency for International Development's (USAID's) Rule of Law Stabilization-Informal Component program (RLS-I) (Swenson uses "RLS-Informal"), misrepresents an effective rule of law program while missing an opportunity for comparative learning. 1 At the core of the issue is Swenson's conºation of RLS-I with counterinsurgency projects and approachesapproaches that RLS-I deliberately avoided. Swenson's dismissal of RLS-I's stated objectives and his selective reliance on sources of varying timeliness, relevance, and accuracy results in the false assumption that the "program's more pressing goal. .. was to supplement and consolidate U.S.-led counterinsurgency efforts" (p. 127). This faulty conclusion serves as the premise for his subsequent analysis, which results in inaccurate assertions and misattributions throughout the article. Swenson claims that RLS-I assumed the existence of and sought to ªll a post-Taliban justice vacuum by propping up self-serving, marginally legitimate ªgures to help stave off an insurgent return. On the contrary, RLS-I's implementers understood that engaging legitimate practitioners of traditional dispute resolution was not intended to fulªll these immediate-term counterinsurgency objectives. They knew that a more realistic goal was engaging existing informal justice mechanisms by ªrst understanding them and then mitigating their harmful, conºict-inducing practices while supportingwithout distorting-their positive components. Achieving this objective would contribute to long-term stability by increasing respect for rights and the rule of law, thereby improving dispute resolution services and reducing destabilizing disputes. The program's pre-intervention research, targeted legal education, locally initiated solutions, and mutual support and accountability among justice stakeholders reºected this understanding. We were therefore dumbfounded by statements from Swenson that, for
Nexuses of knowledge and power in Afghanistan. The Rise and Fall of the Informal Justice Assemblage
This article explores Western attempts to strengthen mechanisms of informal justice in Afghanistan. It traces the origins and evolution of an 'informal justice assemblage'; the constellation of specific expert discourses, institutional practices and strategic considerations that made it possible and plausible that Western actors should promote and work with informal processes of justice. The article problematizes expert statements that posit that working with informal justice is somehow more Afghan-led and less of an outside imposition than to support the country's formal justice system. On the contrary, it is detailed howdiscursively and institutionally -academic authority about what is locally appropriate in practice served to foreclose national debate and scrutiny about the organization and administration of justice. This amounted to a net erosion of accountability, reinforced by the subsequent militarization of the justice sector and governance more broadly. In conclusion, the article calls for greater attention to the broader fields of power in which claims of sensitivity to local sentiments and reality in Afghanistan are made.
2010
The rule of law in Afghanistan has been, generally speaking, fragile. The role of the state (dawlat) as a formal structure of authority, and in maintaining social order in Afghan society, has historically been limited. This applies in particular to rural Afghanistan, where about 80% of the Afghan population has been living. 1 In some southern and eastern parts of the country, state institutions have no-or merely a nominal-existence. 2 The weakness of the Afghan state in mind, the Bonn Agreement of 2001 began a process, focusing on political institutions and procedures, emphasizing the reform of Afghanistan's justice system by stating that "[…] with the assistance of the United Nations, a Judicial Commission [should be established] to rebuild the domestic justice system in accordance with Islamic principles, international standards, the rule of law and Afghan legal traditions."
Afghanistan’s laws and legal institutions under the Taliban
Melbourne Asia Review
The Taliban took over the Afghan capital Kabul in August 2021 and regained control of the entire country. The first time the Taliban ruled Afghanistan (1996-2001), they were virtually stepping into an absence of a legal and political order. However, this time the Taliban have taken over a two-decade-old political and legal order, the Islamic Republic of Afghanistan. What does the Taliban takeover mean for the country's laws and legal institutions? What does it mean for the legal trajectory of Afghanistan? Building on the ruins that the years of civil war and Taliban rule had left behind, the Republic was founded on a constitution (2004) that, by many standards, could be considered the most progressive constitution in the region. Within this progressive constitutional framework, two elected presidents and four elected parliaments enacted numerous laws. The Supreme Court, the country's top court, was reestablished as the head of a formally independent judiciary. The Attorney General's office was reestablished to formally introduce an element of due process in the criminal justice system. Law and political science faculties and Shari'ah faculties, two schools that would supply the justice sector personnel, started graduating people who would staff the growing justice sector. The surplus of law and Shari'ah graduates, the flow of aid to the formal justice sector, and the increase in demand (and need) for formal legal services led to the emergence of a nascent private legal market where a formally independent bar association licensed and regulated the private defence attorneys.
Legal Pluralism in an Islamic State: Reflections on the Afghan Constitution
This paper addresses the importance of legal pluralism as an essential feature of Islamic government. Drawing on legal and political concepts from pre-modern Muslim systems and jurisprudence, the author explains the importance of differentiating between two types of law in an Islamic context: (1) “siyasa,” made by the state in furtherance of the public good; and (2) “fiqh,” made by religious legal scholars based on interpretation of the Qur‘an and Sunnah. The separation of fiqh from siyasa has existed in Muslim societies for centuries, but has disappeared in the modern period. The European nation-state model of government, in which all lawmaking power is centralized with the state, has become the norm in most Muslim-majority countries, leaving most Muslims unaware of the classical history of fiqh as a separate legal sphere with different legal authorities. Without a clear differentiation of siyasa from fiqh, modern Muslim countries run the risk of “legislating” Shari‘a, which eliminates the fiqh pluralism that was inherent to the fiqh realm and creates dangerous near-theocratic forms of government. The author articulates a way to translate the pre-modern fiqh-siyasa separation of powers into a contemporary model for Islamic constitutionalism and analyses some features of the current Afghan Constitution from this perspective.