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A JAG blogs about creating law in Afghanistan

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4 Responses

  1. Patrick S. O'Donnell says:

    If Afghanistan lacks a ‘rule of law tradition’ why is an Amnesty International report titled, ‘Afghanistan: Re-establishing the Rule of Law’?

    See: http://www.web.amnesty.org/library/index/engasa110212003

    ‘The Bonn Agreement states that Afghanistan’s judicial system shall be rebuilt in accordance with Islamic principles, international standards, the rule of law, and Afghan legal traditions.’ It thus will not do to state, without qualification or elaboration, that this is a ‘legal environment lacking a rule of law tradition.’

    What role have earlier constitutions (1923, 1931, 1964, 1987) played in Afghanistan?

    And what about Islamic fiqh (specifically, in this case, the Hanafi legal tradition)?

    Do tribal law codes (e.g., Pashtunwali) count for anything?

  2. Patrick S. O'Donnell says:

    Addendum to above: In other words, ‘White Man’s Burden’ redux?

  3. Patrick, I’d say your comments are right on all counts. Bob Church is my cousin–that’s how Kaimi came upon this subject; I e-mailed an extract from one of Bob’s blog posts to a bunch of lawyer friends of mine–and on more than one occasion I’ve been tempted to write him, making the case that what he sees as an absense of military justice is merely an absense of case law which reflects the West’s historically grounded pre-occupations with state power, the rights of the accused, etc. Not that I dismiss such things, but they aren’t necessarily obvious concepts to grasp. (Another lawyer friend of mine even commented that the Aghani system was, in a sense, more “morally intuitive” than ours–I mean, if someone has committed a crime, you should punish him, right?) As it happens though, I’ve never actually written such an e-mail to Bob, as I figure that would probably be about as unhelpful an e-mail he could possibly receive. He’s doing his job as best he knows how.

  4. Patrick S. O'Donnell says:

    Russell,

    Small, small world!

    ‘He’s doing his job as best he knows how.’–That, I don’t doubt (and one wouldn’t have it otherwise).

    Best wishes,

    Patrick

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