Afghan Legal History

Overview

Familiarity with Afghanistan’s legal history helps to identify similarities and parallels between current systems and institutions, and those of the past. More in-depth study helps to understand what practices worked well in the past, which institutions were functional, and why. This provides a starting point of inquiry to explore what lessons can be applied to current reforms.

The references listed below are divided according to their focus upon the history of Afghanistan’s legal traditions: customary law, Islamic law, and state law. The first subsection lists articles that discuss one or more of these traditions. Each subsection thereafter focuses upon one tradition.

Many articles do not fit neatly into categories of history versus contemporary issues. Many articles that discuss current reforms also include discussions of Afghanistan’s legal history. Articles in this section put more focus upon history. Articles focusing more upon current reforms are listed in sections on constitutional law, state judiciary, informal dispute resolution (sections 4, 5, and 6 of the bibliography, respectively).

3.1 Afghan Legal History, in General

3.2 Customary Law in Afghanistan

3.3 Islamic Law in Afghanistan

3.4 Afghan State Law



Afghan Legal History, in General

back to top

Faiz Ahmed, Shari’a, Custom, and Statutory Law: Comparing State Approaches to Islamic Jurisprudence, Tribal Autonomy, and Legal Development in Afghanistan and Pakistan, Global Jurist (2007), available at mahkamahkonstitusi.go.id.

Thomas Barfield, Afghan Customary Law and Its Relationship to Formal Justice Institutions, usip.org.

Nafay Choudhury, Reconceptualizing Legal Pluralism in Afghanistan, 2010 Windsor Rev. Legal & Soc. Issues 21 (2010).

Bruce Etling, Legal Authorities in the Afghan Legal System (1964‐1979), (Harv. L. Sch. 2003), available at law.harvard.edu.

Esther Meininghaus, Legal Pluralism in Afghanistan, Amu Darya Series Paper No. 8 (U. Bonn 2007), available at zef.de.

Senzil Nawid, The State, the Clergy, and British Imperial Policy in Afghanistan during the 19th and Early 20th Centuries, 29 Int. J. Middle E. Stud. 581 (1997).

Amin Tarzi, Historical Relationship between State and Non-State Judicial Sectors in Afghanistan, (United States Institute of Peace 2006), available at usip.org.

M. G. Weinbaum, Legal Elites in Afghan Society, 12 Int. J. Middle East Stud. 39 (1980).


Customary Law in Afghanistan

back to top

Thomas J. Barfield, Culture and Custom in Nation-Building: Law in Afghanistan, 60 Me. L. Rev. 347 (2008).

Thomas J. Barfield, On Local Justice and Culture in Post-Taliban Afghanistan, 17 Conn. J. Int’l L. 439 (2002).

Benjamin Buchholz, Thoughts on Afghanistan’s Loya Jirga: A Myth?, 104 Asienkunde 23 (2007), available at asienkunde.de.

Checchi and Co. Consulting, Inc., Field Study of Informal and Customary Justice in Afghanistan (2005), available at usip.org.

M. Jamil Hanifi, Editing the Past: Colonial Production of Hegemony Through the ‘Loya Jerga’ in Afghanistan, 37 Iranian Stud. 295 (2004), available at farda.org.

International Legal Foundation, The Customary Laws of Afghanistan (2004), available at usip.org.

Palwasha Kakar, Tribal Law of Pashtunwali and Women’s Legislative Authority, (Harv. L. Sch., 2003), available at law.harvard.edu.

Lutz Rzehak, Doing Pashto: Pashtunwali as the ideal of honourable behavior and tribal life among the Pashtuns (Afghanistan Analysts Network 2011), available at aan-afghanistan.org.

Susanne Schmeidl and Masood Karokhail, The Role of Non-State Actors in ‘Community-Based Policing’ – An Exploration of the Arbakai (Tribal Police) in South-Eastern Afghanistan, 30 Contemporary Security Pol’y 318 (2009), available at tlo-afghanistan.org.

Mohammed Osman Tariq, Tribal Security System (Arbakai) in Southeast Afghanistan, Crisis States Research Centre Occasional Paper no. 7 (2008), available at lse.ac.uk.

Ali Wardak, Jirga: Power and Traditional Conflict Resolution in Afghanistan, in Law After Ground Zero (John Strawson, ed., Cavendish 2002) (2004), available at books.google.com.


Islamic Law in Afghanistan

back to top

Hafizullah Emadi, The End of Taqiyya: Reaffirming the Religious Identity of Ismailis in Shughnan, Badakhshan – Political Implications for Afghanistan, 34 Middle Eastern Stud. 103 (1998), available at ismaili.net.

Ashraf Ghani, Disputes in a Court of Sharia, Kunar Valley, Afghanistan, 1885-1890, 15 Int’l. J. Middle East Stud. 353 (1983).

Martin Lau, Islamic law and the Afghan legal system, in State Reconstruction and International Engagement in Afghanistan (2003), available at lse.ac.uk.

Kristin Mendoza, Islam and Islamism in Afghanistan (2003), available at law.harvard.edu.

Ahmad Indrees Rahmani, The Role of Religious Institutions in Community Governance Affairs: How are Communities Governed Beyond the District Level? (Central European University 2006), available at policy.hu.

Nadjma Yassari and Mohammad Hamid Saboory, Sharia and National Law in Afghanistan, in Sharia Incorporated: A Comparative Overview of the Legal Systems of Twelve Muslim Countries in Past and Present (Jan Michiel Otto ed., 2010), available at books.google.com.


Afghan State Law

back to top

Livingston Armytage, Rebuilding Judicial Competence After the Generation of War, 67 Heidelberg J. of Int’l L. 185 (2007), available at zaoerv.de.

Sulṫān Muḣammad Khān, The Constitution and Laws of Afghanistan (Murray 1900), available at books.google.com
A study of Afghan law, in 1900, compared to laws of European countries at that time.

Katherine McCullough, Out With the Old and In With the New: The Long Struggle for Judicial Reform in Afghanistan, 19 Geo. J. Legal Ethics 821 (2006).

Barnett R. Rubin, Lineages of the State of Afghanistan, 28 Asian Survey 1188 (1988).

Zoe Bernadette Sherman, Afghanistan’s Constitutions – A Comparative Study and Their Implications for Afghan Democratic Development (2006), available at nps.edu.

Amin Tarzi, Historical Lessons on Rebuilding Afghanistan’s Judicial System, in Petersberg Papers on Afghanistan (Danspeckgruber ed., 2009), available at princeton.edu.

J. Alexander Thier, Reestablishing the Judicial System in Afghanistan (2004), available at stanford.edu.

Robert F. Williams, Legal Education in Afghanistan Prior to the Soviet Occupation, 6 Suffolk Transnat’l L.J. 247 (1981-1982).
Advertisements