Comments on: A JAG blogs about creating law in Afghanistan http://www.concurringopinions.com/archives/2007/02/a_jag_blogs_abo.html The Law, the Universe, and Everything Sat, 21 Nov 2009 21:19:19 -0700 http://wordpress.org/?v=2.8.3 hourly 1 By: Patrick S. O'Donnell http://www.concurringopinions.com/archives/2007/02/a_jag_blogs_abo.html/comment-page-1#comment-55258 Patrick S. O'Donnell Fri, 16 Feb 2007 15:56:01 +0000 http://www.solove.org/archives/2007/02/a-jag-blogs-about-creating-law-in-afghanistan.html#comment-55258 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 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

]]> By: Russell Arben Fox http://www.concurringopinions.com/archives/2007/02/a_jag_blogs_abo.html/comment-page-1#comment-55257 Russell Arben Fox Fri, 16 Feb 2007 15:41:15 +0000 http://www.solove.org/archives/2007/02/a-jag-blogs-about-creating-law-in-afghanistan.html#comment-55257 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. 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.

]]> By: Patrick S. O'Donnell http://www.concurringopinions.com/archives/2007/02/a_jag_blogs_abo.html/comment-page-1#comment-55256 Patrick S. O'Donnell Fri, 16 Feb 2007 08:28:04 +0000 http://www.solove.org/archives/2007/02/a-jag-blogs-about-creating-law-in-afghanistan.html#comment-55256 Addendum to above: In other words, 'White Man's Burden' redux? Addendum to above: In other words, ‘White Man’s Burden’ redux?

]]> By: Patrick S. O'Donnell http://www.concurringopinions.com/archives/2007/02/a_jag_blogs_abo.html/comment-page-1#comment-55255 Patrick S. O'Donnell Fri, 16 Feb 2007 08:20:27 +0000 http://www.solove.org/archives/2007/02/a-jag-blogs-about-creating-law-in-afghanistan.html#comment-55255 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? 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?

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