Kabul Law Blog, Round II

by Asher Kohn on 1/25/2010 · 1 comment

Now that classes started up again, I’m going to try and be a bit more law-focused than I’ve been in the past. But I got struck pretty hard yesterday when a professor casually mentioned that in order for the rule of law to work, the state must have a monopoly on law like they ought to for a monopoly on violence. It’s why I’d be more worried about the Taliban’s Sharia courts then I would be about violent insurgency, if I was going to talk about Afghanistan. History is littered with failed armed uprisings, but courts that get listened to generally follow adhesion to a person or an idea.

It is awkward to state from an American perspective, but there is certainly a moral dimension to the war in Afghanistan. I’m sure one of the more Socy/Anth folks (or a real, live, actual, Afghan) would have more to say on the subject, but how Kabul brands its vision of Afghanistan, and how the Taliban brand their vision, are really the most divergent parts of their ideologies. And the Taliban get the Law-and-Order label.

It wasn’t that long ago where news came stateside that the Kabul government is instituting the same laws that we thought ISAF was supposed to be stopping. And poor Karzai has to try to keep his government Afghan enough for respectability while being American enough to show Powerpoints demonstrating progress to ISAF. All the while, folks like Ashraf Ghani have vague, unactable ideas about how to turn Afghanistan into Pennsylvania. Say what you want about the Taliban, they have a clear moral compass. I have yet to hear any stories on widespread corruption on the lower levels of the insurgency. If people feel they can trust the white lines of Taliban rule (even if they stem from black tar) then they’ll pick the Sharia-based justice system over the indeterminately-Western version.

Without a monopoly on justice, the fighting, the development, is all just assorted dead leads. Smuggling, violence, corruption, all stem from the lack of jurisdiction and the image of moral dubiousness coming from Kabul. You could, and many have, argued about what the Big Leading Factor is for the insurgency in Afghanistan. If you, like me, suppose that the lawlessness is the factor, then there are different sets of solutions than what are typically looked at. When Kabul begins a decent, cohesive, vision of what it’s Afghanistan will look like, then Kabul can take the initiative. A constitution that wasn’t made in Germany isn’t a bad place to start.

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– author of 33 posts on 17_PersonNotFound.

Asher is currently in law school at Washington University in Saint Louis. He is studying natural resource law in Central Asia and its intersection with different theories of jurisprudence. Besides Registan.net, Asher has written for The Los Angeles Times, Run of Play, İstanbul Altı, and Istanbul Eats. He has worked with the Natural Resource Law Center and the International Crisis Group, where he studied legal and political traction over a variety of issues.

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{ 1 comment }

Dafydd January 26, 2010 at 4:57 am

One of the great advantages of Sharia (or any traditional justice system) over western versions is the speed with which it operates.

People turn up, state their case, the defendant answers the charge, the judgement is given and acted upon.

We might not like corporal punishment, but from a UK perspective use of the birch was only stopped in the Isle of Mann in the 1980s, and that was due to a European rather than a British court.

The thing with corporal punishment is it is swift and everyone knows that the guilty party has been punished. They saw it with their own eyes. That builds confidence. If a fine is mandated the individual is held until the money is handed over.

Western standards of justice take a long, long time by comparison. In that time people can pay bribes, hire clever lawyers, get to witnesses, organise for the judge to be offerred a promotion, do whatever it takes to ensure the hearing goes their way. Even if they ultimately fail to escape a guilty verdict the pressure, stress and trauma of the wait saps confidence.

It is very difficult to see how a government in Kabul can institute a system which will be as effective as that which the Taliban can offer.

As you note, that is a truly massive problem.

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