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Journal of Afghan Legal Studies

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Journal of Afghan Legal Studies Journal of Afghan Legal Studies Volume 2 (2017 / 1396) Chief Editor: Ass. Prof. Lutforahman Saeed Editors: Prof. Dr. Mohammad Hashim Kamali Dr. Tilmann J. Röder Ass. Prof. Lutforahman Saeed Vazhah Publication Journal of Afghan Legal Studies (Majallah-ʾi muṭāliʿāt-i ḥuqūqī Afghānistān) Volume 2 (2017 / 1396) Chief Editor Ass. Prof. Lutforahman Saeed Editors Prof. Dr. Mohammad Hashim Kamali, Dr. Tilmann J. Röder and Ass. Prof. Lutforahman Saeed Editorial Team Dr. Wahidullah Amiri, LL.M. (Seattle), University of Nagarhar Dr. Wali M. Naseh, LL.M. (Seattle), University of Kabul Dr. Shamshad Pasarlay, LL.M. (Seattle), University of Herat H.E. Abdel-Ellah Sediqi, Ambassador of the Islamic Republic of Afghanistan, Paris Ass. Prof. M. Ayub Yousufzai, University of Mazar-e Sharif Bahishta Zahir Hillali, LL.M. (Toulouse), J. W. Goethe University Frankfurt Editorial Assistants Ahmad Shah Ahmadyar Aisha Mahmood Publisher Foundation of Vazhah Publication Second edition: Kabul, 2018 Circulation: 500 ISSN: 2522-3070 Distribution and Sales Centers Kabul Pul-e- Sorkhk Square, Milli Market, Shop No.17, Phone No: 0780747367 Pol-e-Sokhta, Shahid Mazari Square, Mohammadi Market, Shop No.35, Phone No: 0744029570, email: [email protected] Copyright All rights reserved. No parts of this publication maybe reproduced, distributed or transmitted in any form or by any means, including photocopy, recording or other electronic or mechanical methods, without the prior written permission. Journal of Afghan Legal Studies Volume 2 (2017 / 1396) Academic Advisory Board H.E. Sarwar Danesh, Second Vice President of the Islamic Republic of Afghanistan The Chancellor of the University of Kabul, Prof. Dr. Hamidullah Farooqi Ass. Prof. Dr. Ebrahim Afsah, University of Copenhagen Dr. Mohammad Amin Ahmadi, Ibn-e Sina Institute of Higher Education (Kabul) Dr. Noah Coburn, Bennington College (Bennington, USA) Dr. Ghazaleh Faridzadeh, Shahid Beheshti University (Tehran) Ass. Prof. Ghizaal Haress, LL.M., American University of Afghanistan Prof. Dr. Clark B. Lombardi, University of Washington (Seattle) Prof. Dr. Muhammad Munir, International Islamic University Islamabad Dr. Idris Nassery, Paderborn University Dr. Orzala Nemat, Afghanistan Research and Evaluation Unit (Kabul) Dr. Abdullah Shefaee, Ibn-e Sina Institute of Higher Education (Kabul) Prof. Dr. Ali Wardak, University of South Wales (Pontypridd, UK) Dr. habil. Nadjma Yassari, Max Planck Institute for Comparative and International Private Law (Hamburg) Table of Contain Editorial Note ..............................................................................................................11 Abstracts of Dari/Pashto Articles (in English) .................................................................15 Lessons on Global Legal Transfers from Afghan Taxi Drivers:A Social Network Approach..29 Nafay Choudhury The Uses of Legal Ambiguity: Issues with Legal Protections of International Workers in Afghanistan .................................................................................................................53 Noah Coburn Legal Pluralism and Militia Regulation: International, Domestic, and Community Accountability Frameworks for Sub-State Forces in Afghanistan ..............................................................73 Erica Gaston Enforcing Article 3 of the Afghan Constitution: Lessons from the Pakistani Federal Shariat Court ........................................................................................................................101 Malthe Hilal-Harvald Countering Global Terrorism and its Manifestations in Afghanistan: Advancing New Shariah Perspectives ..............................................................................................................131 Mohammad Hashim Kamali Examining Ethnic Accommodation and Coalition-Building Under Alternative Forms of Government in Afghanistan ........................................................................................169 Mohammad Bashir Mobasher Non-Violation Of Islamic Law Under The Afghan Constitution ....................................193 Mohammad Rasekh Complementarity and Conflict: State, Islamic, and Customary Justice in Afghanistan ......213 Tilmann J. Röder Corporate Manslaughter and Islamic Law in Afghanistan and Pakistan ...........................245 Warda Yasin Editorial Note The Journal of Afghan Legal Studies (JALS) is the first peer-reviewed, trilingual scientific law journal in Afghanistan. It provides a unique intellectual venue for national and international scholars and researchers in the field of Afghan law. The purpose of the JALS is to spread the findings of high-quality research concerning important legal and juridical issues of concern to the country and matters of topical interest in Afghanistan’s on-going efforts to strengthen the rule of law. The JALS also provides reviews and expositions of new challenges emerging from the implementation of the existing laws in the country. Most of the contributions are written by Afghan researchers in Dari, Pashto or English. In addition, a number of international scholars have written articles in English or Farsi. Pashto is much of a newcomer as an academic language and although JALS contributions in Pashto have been somewhat limited in number compared to those in Dari and English, effort is being made to widen the Pashto coverage so as to respond to the needs of Pashto students, scholars and practitioners. The editors will pursue their efforts to contact capable researchers in Afghanistan and abroad to write articles in Pashto, and we are optimistic to having more in the next volumes of the JALS. Most of the articles in this volume were presented at one of the Afghan Legal Studies Conferences, which we organize in Kabul on an annual basis, and after careful review by two members of the Editorial Committee of the JALS, selected papers have been included in this volume. This journal was initiated in 1395/2016 by Prof. Dr. Mohammad Hashim Kamali, Founding CEO of the International Institute of Advanced Islamic Studies (IAIS) 12 / Journal of Afghan Legal Studies in Malaysia, the German scholar Dr. Tilmann J. Röder, and Assistant Professor Lutforahman Saeed of the Shariah Faculty of Kabul University. Afghanistan is still grappling with endemic violence and security issues that are sapping the country’s vitality in so many ways. Academic publications require focus, capacity building and resources, which are limited under these circumstances. It is due to the valuable efforts of many supporters that the JALS has become the only law journal in Afghanistan that is registered with the International Standard Serial Number (ISSN) organization in Paris. The first volume of the JALS was distributed to national and international libraries last year and was warmly welcomed and appreciated by numerous law scholars and researchers. We take this opportunity to thank all of them, and also those who dedicate their valuable time and effort to write scientific contributions for this journal. We are appreciative of the constructive efforts of all who work for the restoration of peace to Afghanistan and a better future for this country. We were exceedingly encouraged by the positive responses to our invitation of a number of eminent national and international academic figures and public personalities to become members of the Academic Advisory Board of the JALS. Their names and organizational affiliations are mentioned on the first pages of this issue. The Editorial Committee takes this opportunity to record their appreciation for them all. It is hoped that the esteemed members of the Academic Advisory Board will avail us of their valuable advice and also to introduce and promote the JALS in their respective countries and organizations in the future. The Editorial Team is composed of postdoc scholars and PhD students who are introduced to the art of journal editing by the Editorial Committee. They carefully reviewed all the contributions in their respective areas of expertise, and shared with us their valuable views. We also acknowledge the hard work of our Editorial Assistants, Mr. Ahmad Shah Ahmadyar and Ms. Aisha Mahmood, who were actively involved in all stages of preparing this volume, and to Ms. Amena Hosseini and Ms. Fatima, for their very good translation of the abstracts of the papers. It is important to us to mention that all persons involved, without any exception, are doing this work as volunteers and without payment. With a view to improve the production process and the visibility of the JALS in Afghanistan. Dr. Tilmann J. Röder and Professor Mohammad Hashim Kamali decided to appoint Ass. Prof. Lutforahman Saeed as the Chief Editor of the JALS. Editorial Note / 13 He has taken control since then and much of the editorial tasks of the present issue were carried under his supervision. Last but not least we acknowledge with profound appreciation the Foreign Office of the Federal Republic of Germany for generously providing financial support to conduct the Afghan Legal Studies Conferences that in many ways facilitated the publication of this journal. We are actively looking for donors who will help us to continue our Afghan Legal Studies Project, which we intend to continue for many years to come. The Editors Prof. Dr. Mohammad Hashim Kamali, Dr. Tilmann J. Röder and Chief Editor, Ass. Prof. Lutforahman Saeed Abstracts of Dari/Pashto Articles Eid Mohammad Ahmadi: The Need for Alternatives to Imprisonment and Criminal Law Mechanisms in Afghanistan Abstract: The Enlightenment
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