7. Sharia and national law in Afghanistan

Abstract

Legal pluralism is the hallmark of Afghan legal reality. Afghan law is a combination of Islamic law, state legislation, and local customary law. This chapter traces the origins of that plurality and shows that the lack of clarity regarding the relationship between these different sources of law and the absence of guidelines as how to resolve conflicts between them is still causing many problems in Afghanistan today. Despite the existence of official law, i.e. the formal legal system established under the provisions of a constitution, the socio-legal reality is not reflected by it, and the law in the books does not represent the norms that actually govern the lives of the majority of the population. For ordinary people and villagers, who form the majority of the populace, tribal/customary and Islamic law are more significant and actually better known than any state legislation. As a result, in Afghanistan it is not the implications of sharia or sharia-based law that, at least for the moment, prevents the application and implementation of international legal and human rights standards, but the lack of a system by which the rule of law may be established so that the legal system is capable - practically, socially, politically - of guaranteeing and enforcing laws effectively. Although the Government of Afghanistan is committed to carrying out its duties imposed not only by Afghanistan's domestic laws but also by the country's international obligations, the greatest challenge to action is the lack of security and the fragile peace balance in the country.