Historically, many disputes in Afghanistan were resolved outside of the formal justice system, and this informal legal practice continues for many Afghans today. Local councils and groups of elders called shuras and jirgas have resolved legal disputes outside of the formal court system for centuries. These informal institutions enforce Shari’a law, customary tribal law, and the collective wisdom of elders, instead of Afghanistan’s Constitution and statutes. While it may be true that local adjudicatory systems rely on oral tradition rather than written rules, the local processes are, in fact, sophisticated. This sophistication is visible in both the decision-making processes of local systems, as well as the structures of those systems. In a typical jirga, for example, decisions are made in accordance with well-developed understandings of morality and justice. In some cases, there is even an established system for appealing jirga decisions to a higher group of elders. Thus, Afghanistan’s local adjudicatory systems share many of the “formalities” of codified legal systems, and can rightly be viewed as institutions applying customary law. Answer the following: Generally, would you prefer a formal or informal system? Why? What do you believe are the benefits and drawbacks of customary law in Afghanistan? Is it desirable for Afghanistan’s government to acknowledge and promote customary law? Do you think the court system should oversee the decisions of shuras and jirgas? Explain.
Historically, many disputes in Afghanistan were resolved outside of the formal justice system, and this informal legal practice continues for many Afghans today. Local councils and groups of elders called shuras and jirgas have resolved legal disputes outside of the formal court system for centuries. These informal institutions enforce Shari’a law, customary tribal law, and the collective wisdom of elders, instead of Afghanistan’s Constitution and statutes.
While it may be true that local adjudicatory systems rely on oral tradition rather than written rules, the local processes are, in fact, sophisticated. This sophistication is visible in both the decision-making processes of local systems, as well as the structures of those systems. In a typical jirga, for example, decisions are made in accordance with well-developed understandings of morality and justice. In some cases, there is even an established system for appealing jirga decisions to a higher group of elders. Thus, Afghanistan’s local adjudicatory systems share many of the “formalities” of codified legal systems, and can rightly be viewed as institutions applying customary law. Answer the following:
- Generally, would you prefer a formal or informal system? Why?
- What do you believe are the benefits and drawbacks of customary law in Afghanistan?
- Is it desirable for Afghanistan’s government to acknowledge and promote customary law?
- Do you think the court system should oversee the decisions of shuras and jirgas? Explain.
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