The management of legal pluralism and human rights in decentralized Afghanistan

Abstract

Legal pluralism concerns the often complex interactions between various legal orders. This includes the various domains of state law, human rights and tribal customary and religious laws. In recent decades, international developers have attempted to impart universalism within socially, culturally and legally diverse contexts such as decentralized locations that practice local and indigenous modes of justice. International donors in Afghanistan have attempted to spread the rule of law and basic human rights from judicial reform and the 2004 constitution into the countryside, whilst referring to Islamic family and criminal law. The Afghan government and state legalisms are largely centralized within a mountainous country. Most citizens, spread across 34 provinces, rely on the judgements of trusted elders, or even the Taliban in southern regions, in community-based dispute resolutions. Using interviews conducted with Afghan judicial and rule of law experts, this article assesses the management of legal pluralism in Afghanistan. It is argued that, with varying results, legal pluralism has been managed by “project law” to promote “better world visions” and donors’ notions of (social) justice to introduce western laws and human rights to local customary settings. This is followed by concluding remarks and some recommendations. When implementing projects, international developers could work towards incorporating all actors and their legal institutions, including local mediators. Improving case tracking at the provincial and district levels is needed to promote consistency and improve observance of basic human rights standards. Furthermore, continuing to raise awareness of women’s rights in rural areas with the use of local organizations and civil society could impart human rights locally. This can be achieved by training ulema, mullahs and other local justice authorities of basic human rights in highly funded community development councils and other national solidarity programme projects.