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Hastings Constitutional Law Quarterly

Abstract

"Rule of Law" is a principle that politicians often discuss to evaluate the stability and progressive nature of another state. From the Western point of view-where Rule of Law is most commonly discussed-Rule of Law is predicated on sovereign, supreme, predictable, and fair legal systems. Failure to satisfy this formulation suggests that a state lacks Rule of Law. Rule of Law's absence, in turn, evokes negative connotations and is often synonymous with a lack of democracy. The Islamic Republic of Afghanistan is war-torn, decentralized, and corrupt-but can it still have Rule of Law? Are these concepts mutually exclusive? Must Afghanistan's legal structure function in the same manner as its Western counterparts in order to have Rule of Law, or does this principle have some practical flexibility in its application?

This Note contextualizes the Rule of Law analysis in Afghanistan to more accurately evaluate the Afghan legal system. While Afghanistan is hardly a perfectly stable state, it would be unwise to suggest that the problems Afghanistan faces necessarily mean that the State cannot have Rule of Law. The history upon which Afghanistan's legal system is based is entirely different from the histories in the West. Their sources of law are completely different, far more pluralistic, and, one could argue, more deeply entrenched in society. A legal structure fit for the Western world should not be forced onto Afghanistan because it would fail to properly contextualize the Afghan legal system. Rule of Law can be established through informal and provincial justice, provided that justice is relied upon by society, reflective of social norms, predictable, and deemed to be fair. Absent evidence to the contrary, Rule of Law exists, and because Afghanistan evidences these elements, its Rule of Law should not be so often questioned.

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