4TH EDITION AN INTRODUCTION TO THE LAWS OF AFGHANISTAN Rule of LawProgram AfghanistanStanford Legal a Education , rl1ool Project An Introduction to the Laws of Afghanistan Fourth Edition Published 2017 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) ALEP – STANFORD LAW SCHOOL Fourth Edition Prior Editions Authors Authors Kristina Alekseyeva Eli Sugarman Stephanie Birndorf Alexander Benard Joseph DeMott Anne Stephens Lloyd Shannon Galvin Ben Joseloff Mehdi J. Hakimi Max Rettig Juan Pablo Perez-Sangimino Stephanie Ahmad Tara Rangchi Jason Berg Michael Talent Editors Morgan Galland Rose Leda Ehler Daniel Lewis Ingrid Price Catherine Baylin Elizabeth Espinosa Jane Farrington Gabriel Ledeen Nicholas Reed Faculty Director Erik Jensen Rule of Law Program Executive Director Mehdi J. Hakimi, 2016- Megan Karsh, 2012-16 Advisors Rohullah Azizi Rolando Garcia Miron AMERICAN UNIVERSITY OF AFGHANISTAN Contributing Faculty Editor Ghizaal Haress Chair of the Department of Law Ghizaal Haress, 2016- Mehdi J. Hakimi, 2014-16 Hadley Rose, 2013-14 Taylor Strickling, 2012-13 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 Laws of Afghanistan (4th Edition), ALEP has published introductory textbooks about: 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); Property Law of Afghanistan (1st Edition); and An Introduction to Legal Ethics in Afghanistan (1st Edition). Textbooks addressing Legal Methods: Thinking Like a Lawyer, Legal Methods: Legal Practice, and new versions of Public International Law and Commercial 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 ten years with AUAF’s extraordinarily supportive leadership: Dr. Sharif Fayez (Founder), Dr. Kenneth Holland (President), David Sedney (former President), Dr. Mark English (former President), Dr. Michael Smith (former President), and AUAF’s Board of Trustees. As with all ALEP textbooks, the content of An Introduction to the Laws of Afghanistan (4th Edition) is the product of extensive collaboration. We thank the ALEP authors: Kristina Alekseyeva, Stephanie Birndorf, Joe DeMott, Shannon Galvin, Mehdi J. Hakimi, Juan Pablo Perez-Sangimino, Tara Rangchi, and Michael Talent for their work researching, drafting, and revising the chapters. Ghizaal Haress, AUAF Professor and Chair of Law Department, was instrumental in providing the initial insights and structure for the book and subsequent review of the materials. Rohullah Azizi, ALEP Curriculum Advisor, provided substantial guidance and feedback to the students throughout the process. Rolando Garcia Miron, ALEP Program Advisor, played a key role in supporting the entire team on programmatic aspects of the project. Finally, Mehdi J. Hakimi, Executive Director of the Rule of Law Program, deserves special acknowledgment for the innumerable tasks both large and small that he 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 Member, Board of Trustees of AUAF Palo Alto, California, June 2017 iii TABLE OF CONTENTS Chapter 1: Introduction ………………………………………………………………. 1 Chapter 2: Preliminary Concepts in Law……………………………………………. 5 Chapter 3: Afghan Legal Sources……………………………………………………... 37 Chapter 4: Afghanistan’s Legal History………………….....………………………... 73 Chapter 5: Legal Institutions in Afghanistan...………………………………….…… 102 Chapter 6: Substantive Laws…………………..….…………………………….…...... 132 Chapter 7: Procedural Laws………………..………………………………………… 165 Chapter 8: Critical Thinking, Reasoning, and Analysis..…………………………… 198 Conclusion………………………………………………....…………………………… 229 Glossary……………………………….……………………………………...…………. 231 iv CHAPTER 1: INTRODUCTION The Afghan legal landscape has changed considerably since 2001. The 2004 constitution ushered in a wave of legal and regulatory reforms in the country. Key legal institutions have been revamped and new bodies, such as the Afghanistan Independent Bar Association, have been established. Numerous laws and regulations have been passed at an unprecedented rate. Afghanistan has entered into an increasing number of agreements with regional partners. The country has also joined major international bodies such as the World Trade Organization. These recent legal developments necessitate a fresh and critical examination. This book is designed to provide you with an introduction to the laws of Afghanistan. You will acquire a solid general foundation in key legal concepts which will be helpful in your subsequent studies in law. In addition to increasing your knowledge of legal concepts, you will understand how the law impacts your daily life. This book will also emphasize the importance of thinking critically about new ideas and legal issues, which will be a crucial skill in your studies and professional career. Rather than passively reading the concepts, you will learn to critically analyze and evaluate new concepts and the law. This book is replete with examples, case studies, discussion questions, and other instructional tools to help you better understand the materials. You will have ample opportunities to apply newly acquired knowledge to various exercises. Moreover, through comparative cases and examples, you will learn about other legal systems and approaches. This comparative perspective is important as Afghanistan becomes increasingly connected to the wider global community. The chapters in the book build on each other. Before starting our discussion of Afghan law, you will learn some fundamental and preliminary legal concepts which will be revisited in subsequent chapters. Next, you will learn about the sources of Afghan law as well as Afghanistan’s legal history. We will also examine Afghanistan’s major legal institutions under the current constitution. Moreover, you will be introduced to Afghanistan’s substantive laws and procedural laws. While the entire book contains many instructional tools to enhance critical thinking, the final chapter will delve deeper in improving this foundational skill. Let’s look a bit more closely at what each chapter will entail. Chapter Two begins with some key preliminary topics in law. It introduces the concept of “law” and its importance. You will learn how law is different from other types of rules such as morality and social norms. You will also learn about the similarities and overlap among these notions. Moreover, you will be introduced to the types of behavior governed by law; laws may require a person do something, forbid a person from doing something, or simply describe something without any mandatory or prohibitory aspect. You will also be introduced to two broad categories of law – substantive laws and procedural laws – which will be explored further in subsequent chapters. A key feature of law is enforceability by government which will be discussed as well. Law serves two important purposes: promoting order and promoting justice. You will learn about these two key objectives of law and how they may sometimes conflict with each other. You will also become familiar with a number of other core legal concepts that will be revisited throughout the book. A major distinction is made between rights and obligations. While a right is something that a person is legally entitled to have, an obligation is something that a person is legally required to do or not to do. Moreover, you will learn how law distinguishes between two types of persons: natural and legal persons. A natural person is a human being. A legal person is an abstract, non-physical entity that can have rights and obligations. You will also learn the related but different concepts