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Property Law of Afghanistan 1ST EDITION AN INTRODUCTION TO THE PROPERTY LAW OF AFGHANISTAN An Introduction to the Property Law of Afghanistan First Edition Published 2015 Afghanistan Legal Education Project (ALEP) at Stanford Law School http://alep.stanford.edu [email protected] Stanford Law School Crown Quadrangle 559 Nathan Abbott Way Stanford, CA 94305-8610 http://law.stanford.edu Protected by Creative Commons License (No Derivative Works) i ALEP – STANFORD LAW SCHOOL Authors Tres Thompson (Student Director, 2014-15) Marta Darby Michelle Hillenbrand Trevor Kempner Mansi Kothari Andrew Lawrence Ryan Nelson Tom Wakefield Editors Tres Thompson (Student Director, 2014-15) Jason Fischbein Tom Wakefield Faculty Director Erik Jensen Rule of Law Program Executive Director Megan Karsh Advisors Rolando Garcia Miron Rohullah Azizi Translation Elite Legal Services, Ltd. AMERICAN UNIVERSITY OF AFGHANISTAN Contributing Faculty Editors Naqib Khpulwak Chair of the Department of Law Taylor Strickling, 2012-13 Hadley Rose, 2013-14 Mehdi Hakimi, 2014- ii PREFACE & ACKNOWLEDGEMENTS Stanford Law School's Afghanistan Legal Education Project (ALEP) began in the fall of 2007 as a student-initiated program dedicated to helping Afghan universities train the next generation of Afghan lawyers. ALEP’s mandate is to research, write, and publish high-quality legal textbooks, and to develop a degree-granting law program at the American University of Afghanistan (AUAF). The AUAF Law Department faculty and Stanford Law School students develop curriculum under the guidance of ALEP’s Faculty Director and Executive Director with significant input from Afghan scholars and practitioners. In addition to An Introduction to the Property Law of Afghanistan (1st Edition), ALEP has published introductory textbooks about: The Law of Afghanistan (3rd Edition); Commercial Law of Afghanistan (2nd Edition); Criminal Law of Afghanistan (2nd Edition); Constitutional Law of Afghanistan (2nd Edition), International Law for Afghanistan (1st Edition); Law of Obligations of Afghanistan (1st Edition), Legal Ethics in Afghanistan (1st Edition). Textbooks addressing Legal Methods: Thinking Like a Lawyer, Legal Methods: Legal Practice, and a new version of Public International Law are forthcoming. Many of the ALEP textbooks have been translated into the native Dari and Pashto languages and are available for free at alep.stanford.edu. Additionally, ALEP has published professional translations of the Afghan Civil Code and Afghan Commercial Code, and business guides authored by Afghan students in the business law clinic. All are available on ALEP’s website. ALEP would like to acknowledge the individuals and institutions that have made the entire project possible. ALEP benefits from generous and dynamic support from the Bureau of International Narcotics and Law Enforcement (INL) at the U.S. Department of State. Current Stanford Law School Dean Elizabeth Magill, former Dean Larry Kramer, and Deborah Zumwalt, General Counsel of Stanford University and member of AUAF’s Board of Trustees, have provided important continuing support to ALEP. ALEP’s partnership has deepened over the last six years with AUAF’s leadership: Dr. Sharif Fayez (Founder), Dr. Mark A. English (Acting President), Dr. Michael Smith (former President), and Dr. Timor Saffary (Chief Academic Officer). As with all ALEP textbooks, the content of An Introduction to the Property Law of Afghanistan (1st Edition) is the product of extensive collaboration. Were it not for the skillful work of Elite Legal Services, Ltd. and Mohammad Fahim Barmaki in creating the first reliable English translation of the Civil Code of Afghanistan, this textbook could not have been written. We thank the ALEP authors: Tres Thompson, Marta Darby, Michelle Hillenbrand, Trevor Kempner, Mansi Kothari, Andrew Lawrence, Ryan Nelson, and Tom Wakefield for their work researching, drafting, and revising the chapters. ALEP Curriculum Advisor, Rohullah Azizi, and former AUAF Prof. Naqib Khpulwak provided substantial guidance and feedback to the students throughout the process. Tres Thompson, Tom Wakefield, and Jason Fischbein worked tirelessly to edit the drafts and get the textbook into final form with assistance from ALEP Program Advisor, Rolando Garcia Miron. Finally, Megan Karsh, Executive Director of the Rule of Law Program, deserves special acknowledgment for the innumerable tasks both large and small that she undertook in shepherding this textbook from inception to completion. ALEP looks forward to continuing the collaboration that made this book possible. Please share your feedback with us on our website, alep.stanford.edu. Erik Jensen, Faculty Director, ALEP Palo Alto, California, December 2015 iii TABLE OF CONTENTS Chapter 1: Property Principles………………………………………………………………. 1 Chapter 2: Legal Framework and Dispute Resolution……………………………………... 18 Chapter 3: Ownership…..…………………………………………………………………….. 36 Chapter 4: Property Transfers……………..………………………………………………… 54 Chapter 5: Property Transfers Without Permission….…………………………………...... 87 Chapter 6: Limitations on Use………………..………………………………………………. 104 Chapter 7: Agriculture and Water Law……………………………...………………………. 141 Chapter 8: Minerals & Hydrocarbons……………………………………...………………… 181 iv CHAPTER 1: PROPERTY PRINCIPLES “There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right to property.” William Blackstone1 At the beginning of this textbook, the authors would like to make two suggestions about how to approach the study of property law. First, property is a subject that affects our lives every day, that we think about often, and about which we have strong opinions. For this reason, you should not think of property law as a purely academic subject. Instead, you should think of property law as a practical subject about which you already have a lot of knowledge. This textbook will formalize and organize your knowledge of property law, but you should use what you already know about the subject as you read the textbook. Second, property is a controversial subject with social and political implications. This textbook addresses what property law is (a legal question). There is another question of what property law should be (a normative question, or question about social values). For instance, there is a legal question about how to acquire ownership of a plot of land, and there is a normative question about how many plots of land a single person should be allowed to acquire. To be clear, the normative question is how to balance the individual right of land ownership with a collective goal of relative equality in land ownership. This question itself makes assumptions that you may disagree with. For instance, you may not believe in an individual right of land ownership. Or, alternatively, you may reject the notion that society needs to strive for relative equality in land ownership. Regardless, the point is that property law is a controversial topic worthy of your careful study. Although the textbook focuses on legal questions, it is important to consider and discuss normative questions too. It will make for good conversation with your classmates, as these normative questions are deeply interesting. As a final note, this introductory chapter introduces property principles. The chapter provides a background of larger ideas about property law that will inform your understanding of the particular topics discussed in later chapters. It answers these questions: What is property? Why do we have property law? What are the theories that serve as the basis of property rights? Finally, the chapter concludes by briefly introducing what will follow in later chapters. 1. PROPERTY PRINCIPLES 1.1 What is property? 1.1.1 Defining Property 1977 Civil Code of the Republic of Afghanistan2 Article 472: Property is a physical object or right that has material value among people. 1 William Blackstone, Commentaries on the Laws of England, volume II, p. 2. 2 1977 Civil Code of the Republic of Afghanistan, Article 472. 1 Imagine you have just purchased a house that occupies a small plot of land. You now have the right to move into your new house. There are many other rights that you now possess too. For instance, you can allow a neighbor to use a path that goes across your plot of land. Or you can exclude another neighbor from playing football on your plot of land. Maybe you are an excellent cook, and you decide that you would like to have a newer, better kitchen so that you can prepare delicious meals for your family and friends: you can wreck the old kitchen and build a new one. Eventually, you may decide that you would like to move to a house in another neighborhood: you can sell the house to a buyer. All of these actions are examples of rights that follow from ownership of the physical object of the house. Note, however, that these rights are limited, as will be explained later in the textbook.3 This simple example helps us think about how to define property. Property refers to things, like the house. Property also refers to rights of ownership, like the right to exclude the footballing neighbor from your plot of land. Things are physical objects that we can own. Rights are legal protections that follow from ownership of the physical object. One prominent legal dictionary defines property as “[t]he right to possess, use, and enjoy a determinate thing.”4 Note how similar this definition is to the definition in the Civil Code. Note also how both definitions contain both things or physical objects and rights. Some scholars
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