Legal Pluralism in Afghanistan Revisited: From Theory to Practice

In one of my earlier blogs focusing on Afghanistan, I spoke about the possibility of reconciling the various systems which exert authority within the country. The next question that arises is what this actually mean for Afghanistan.

Framework for Navigating Normative Variations

In moving from theory to practice, it may be most fruitful to take a step back from the various abstract and, at times, esoteric discussions of legal pluralists – a discussion based in legal anthropology – and step into the shoes of the practicing lawyer. The realities she faces day-to-day shed light on the task of navigating through competing normative realities. The writing of Professor Singer, in this regard, is particularly insightful:

Many philosophers seek theories that dissolve incommensurabilities by appealing to higher order norms or metatheories that provide rational priorities among competing values. Lawyers and judges and law makers, on the other hand, are rarely beguiled by monistic theories. We make utilitarian arguments; we talk about rights, justice, fairness; we are concerned to define the appropriate institutional role for judges in a free and democratic society; we tell the story; we resort to process to solve substantive problems. Moreover, we are skeptical about the ability of rigid priority rules to determine just outcomes in specific cases. In short, we use multiple normative strategies, unashamed that we are unable to find killer arguments that put all normative controversies to bed or that we are borrowing from warring traditions.[1] [emphasis added]

Singer’s comments provide an enlightening (albeit contestable) suggestion that in the seeking of a solution to a legal dilemma, the use of “multiple normative strategies”, – strategies that may even create inconsistencies from problem to problem – can provide meaningful solutions.

A country’s constitution (whether written or unwritten) can open the door to a spectrum of normative interpretations. The role of any given constitution is to assert broadly defined values which extend over a diverse people within a region. These constitutional principles are normally consistent with a broad notion of human rights; thus, they encapsulate what can be viewed as the “fundamental rights” of the individuals which they extend over. However, contrary to conventional conceptions of constitutionality, a constitution does not necessarily entail that these principles are reached in one particular way.[2] For purpose of this discussion, it suffices to focus on chthonic law and state law, since elements of these two systems are often viewed as being at odds and since the Shari’a overlaps with both sets of laws.[3]

An examination of the 2004 Constitution of Afghanistan reveals how the country seeks to confer certain broadly defined fundamental rights on all its citizens.[4] The Constitution specifically includes the right to liberty, the presumption of innocence, the right to form social organization, the right to legal defense if accused of an offense under the law, and freedom of expression. The attainment of these fundamental rights can be consistent with a pluralistic conception of the law. Fundamental rights can be attained not only through state legal mechanisms but also through chthonic legal mechanisms. It is certainly arguable that the jirga/shura institution, which implements chthonic law, is just as able as state courts to implement justice in a manner that fulfills the ultimate attainment of justice to the individual. This approach to the fulfillment of constitutional principles through chthonic laws raises other questions. In the attainment of fundamental rights, how should a choice of law rule be implemented when substantive chthonic and state laws come into conflict? In what instances should courts be reviewing decisions of the jirga/shura institution, and what should be the standard of review? Finally, in what instances can one derogate from fundamental rights and to what extent?

Scenario – Murder case before a Jirga/Shura

Consider the scenario where a jirga/shura dealing with a murder case may lead to a decision to reconcile the parties through the practice of bad, which entails the swapping of brides. In such instances, though community justice may be fulfilled, the ruling may be abhorrent to fundamental justice as provided by the Constitution and understood under state law. The practice of bride swapping infringes on the well-being of some Afghan citizens, namely the females being implicated, and thus the state has an interest in protecting its citizens according to its notion of justice.[5] Legal pluralism will inevitably result in such legal quagmires where the rule of law based on one set of normative laws will directly be in conflict with the rule of law based on another set of normative laws.[6]

The approach of Singer may provide some instruction in dealing with such situations. A fixed set of a priori rules will not be able to deal with such a normative clash. Rather the judge or party weighing the interests of various normative laws must use “multiple normative strategies”. He must judge between apples and oranges  – he must analyze the extent to which a decision is consistent with one set of legal norms, as opposed to the extent to which the decision is abhorrent to an alternate set of legal norms. As well, he must take into consideration other factors, such as considering other legal norms that may claim authority – for example the Shari’a and international human rights norms – all of which he must factor into his final ruling. The judge must undertake his analysis on a case-by-case basis since much will revolve around the facts. In addition, the judge must be well versed in multiple sources of law, or minimally be ready to embark upon exploration of various normative legal norms, in trying to balance between the norms. Indeed, in case which involves two or more constitutional principles, a judge may be required to weigh fundamental rights against one another.

This scenario raises another important issue in the overall administration of justice: how should it be decided that a jirga/shura decision be reviewed by a state court? The jirga/shura institution and state courts already exhibit a level dynamic interplay between the two legal orders – a mixture of cooperation and tension. On the one hand, state courts already refer cases (including criminal murder cases)[7] back to the community level, limiting its own authority in favour of that of chthonic system. In this manner, the state system indirectly gains esteem in the eyes of rural Afghans through its cooperation with the chthonic system. On the other hand, in certain cases, the state system may seek to assert this strengthened authority by bringing in select cases of jirga/shura decisions before the court.

There need not exist a blanket policy concerning specific categories of cases that should always come before the state courts.[8] Rather, the state can proceed by identifying certain broad categories of cases that it feels “may” lead to a potential clash of normative legal orders – areas such as women’s rights cases and criminal cases – and monitor the activities of jirga/shura decisions in these areas.[9] A state actor would only raise a concern if it felt that a fundamental right (according to the state’s conception of justice) embodied by the Constitution was not being adhered to, causing a clash of normative values (in the manner analogous to scenario two, mentioned above).

Establishing a functional/functioning legal system in Afghanistan will take many years. Doing justice to this slow process requires that all conceptual postulates be brought to the table – with full knowledge that many will only be considered, studied, and retired.

[The entry draws extensively from a research paper entitled Re-conceptualizing Legal Pluralism in Afghanistan, written under the guidance of Professor Megret]

[2] C Himonga and R Manjoo” What’s in a Name?” in Manfred O. Hinz, ed., The Shade of New Leaves – Governance in Traditional Authority: A South African Perspective (Berlin: Lit Verlag, 2006) 29 at 329.

[3] Looking at these legal systems without focusing on the Shari’a facilitates a simplified discussion at this juncture. However, it certainly may be desirable to keep all three legal systems separate if one were to undertake a fully exhaustive exploration of the various interactions between the three systems.

[4] Constitution of Afghanistan 2004, trans. by Yahya Wardak (Kabul, Afghanistan: Shah M Book Co, 2004). Chapter 2 of the Constitution deals with fundamental rights.

[5] An even more complicated example would arise the female did not contest (or even tacitly approved) begin “bride swapped”.

[6] Gordon R. Woodman, “Legal Pluralism and the Search for Justice” (1996) 40 J. African L. 152 at 160.

[7] USAID, “Afghanistan Rule of Law Project” A publication for the United States Agency for International Development (2005) at 11.

[8] This suggest is contrary to the opinion of various organizations that work in Afghanistan, such as the USIP and the Norwegian Refugee Council, who both assert that all serious criminal cases, such as murder, must be dealt with at the state level, without exception.

[9] Wardak provides more some pragmatic suggestions on how such monitoring could be set up. See Ali Wardak, “Building a Post-War Justice System in Afghanistan” (2004) 41 Crime, L. & Social Change 319.

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