The essence of law is ancient. With the Indo-European root legh- which means to lie, to lay, lair, home, earth, nest and fellow, law is about human, earth, and the relationship between the two. The root of the word “legislator” is leg-1 meaning to collect, to speak, one who speaks magic words, analogous and apology. Rule has the root reg-1, which means to move in straight line.[1]
Indo-European roots of words reveal much about civilizations’ understanding of concepts and people’s implicit expectations when those concepts are employed, in particular by outsiders. The definitions and derivatives of law, legislator and rule depict a picture of the relationship between these terms. This picture is one where law is supreme to legislation, and legislation is a process of collecting and speaking the pre-existing magical words of law, along the already set parallels. For the rule of law to exist, this supremacy must be maintained without deviation by the agency that embodies rule of law.
American political scientist Francis Fukuyama does not agree with the Austrian economist and philosopher Friedrich Hayek’s notion of extreme difference between law and legislation. Fukuyama allots greater significance to the interventions of political authorities in shaping law throughout history.[2] Still, he defines law as “a body of abstract rules of justice that bind a community together” and Legislation as “a function of political power.” To him, rule of law is a social consensus. It is an indication of justness of the existing body of law defined by religion, community customs or nature. [3] Therefore, society is the source of rule of law, not the state. State is merely a creature, the behavior of which must be constrained by law. He further adds that for the rule of law to exist, law must be sovereign to the legislation. For the ruler to have legitimacy, she must legislate within the bounds defined by law.[4]
By this definition, rule of law can be a threat to political power.[5] This seems to be the case in the context of Afghanistan: Rule of law is a threat to the powerful political elite, who perceive themselves and are perceived to be exempt.
Fukuyama’s narration of the history highlights the contrast between past and present. Europe’s political development, he writes, occurred without a top-down approach. It was driven by the purpose of dispensing justice. Legitimacy was derived from impartial enforcement of pre-existing laws.[6] In contrast to this narration of history by Fukuyama, efforts aimed at establishing rule of law in Afghanistan were spearheaded by the post 9/11 military deployment wrapped in a top-down political approach. Fukuyama referring to Hayek, recounts the failed experience of the Soviet Union as a lesson from history.[7] Unfortunately for Afghanistan, this happens to be too late a recount to matter at this point. History has already repeated itself. The result is a Constitution -one of the milestones of the international community’s achievements in Afghanistan- with reduced legitimacy, not so much in the eyes of the ordinary Afghans or the Taliban insurgency, but in the eyes of the powerful political elite within the government.
The role of the administering institutions of rule of law is important. The capacity building of judges and lawyers, and the institutionalization of the formal procedures of courts is critical for the rule of law to exist. However, institutions are not enough.[8] People’s perception of the credibility of those institutions is equally important. The Indo-European root of the word “credible” is kerd-1 which means heart.[9] A useful question to wonder about might be: Do rule of law administering institutions connect to people’s hearts? If no, what is missing?
Fear of punishment may drive obedience of some people for some time. But genuine public acknowledgement comes from the degree of fairness of the law and its even application across all spectra of society. [10]
Absence of even application of law marks one of the missing ingredients of the national and international efforts aimed at establishing rule of law in Afghanistan, where the rich and powerful are exempt. The country’s major corruption scandal around Kabul Bank remains to be solved despite early reports, warnings and investigation results.[11] The government is populated by former warlords, heads of political parties and politicians with reported criminal and human rights violation records.[12] And attempts at documentation have been blocked by the government repeatedly.[13] The law seems to exist for the poor and impoverished majority of Afghans only.
For the rule of law to exist in Afghanistan, law needs to be embodied in autonomous institutions[14], other than the state. Fukuyama highlights the role of the Church as the architect of the basic institutions that sparked economic development in Europe.[15] In the case of Afghanistan, two things make this difficult if not impossible: the centralized system of governance and the non-existent role of institutionalized religion outsides the government. Afghanistan is one of the few countries with a state religion. The Constitution requires every law to be in accordance with the principles of Islam.[16] Despite this explicit marriage between political power and religion and the current helplessness of the Afghan government and the international community in the face of anti-Quran burning violent protests[17], the institution of Mosque in Afghanistan cannot be compared to the Church of Europe.
With the intention to focus on specifics, two of the many rule of law programs executed in the past 10 years in Afghanistan are briefly reviewed below.
Promoting the Rule of Law in Afghanistan – GTZ
German Technical Cooperation has been working in the field of rule of law since 2003. Their training programs were driven by the lack of sufficient numbers of lawyers and judges in order to “promote the culture of respect for state laws and legal institutions.”[18] This approach is in total contrast to Fukuyama’s narration of history of rule of law and the concept of state law being a consequence of the function of political power. The image below showing the training of tribal leaders says much about GTZ’s top-down approach of engaging -or rather educating- social informal institutions: wisdom comes with education!
Training Tribal Leaders Photo: GTZ
Rule of Law Stabilization Program – USAID/ Checchi and Company Consulting
USAID supports one of the major programs on rule of law in Afghanistan. One of the objectives of the Rule of Law Stabilization Program is to “increase stability through support of the informal justice system” in order to “foster linkages between the formal and informal justice systems.” The informal component of this program includes interestingly revealing interventions such as “Familiarize Jirgas (traditional dispute-resolution councils) with Afghan law with an emphasis on women’s rights” and “Train farmers and herders on dispute-resolution.” [19] Finding similar images of the USAID training programs should not be surprising. An external assessment of the program found out that “workshops were helping to modernize attitudes and mindsets” and recommended to “reduce the time allotted to area assessment.”[20] The approach seems very clear: there is no need to spend time understanding –let alone learning from- the pre-existing social systems, organize workshops and modernize attitudes and mindsets!
This critique is not to suggest that the execution of rule of law programs in Afghanistan is free of challenges. This is to highlight the failure in diagnosis of the challenge, and to identify the instance where a technical fix was applied to a situation which required deeper analysis and learning in the form adaptive work.[21] Let us study the challenge of coordinating aid efforts in this context, where rule of law initiatives involve many countries, and many agencies within some countries such as the US government: The training of the Afghan National Police and the Afghan National Army has been the focus of the US military. Governance reform has been focused on by the military and civilian personnel based at the Provincial Reconstruction Teams. USAID has been leading international efforts in the field of civil and commercial law. The Drug Enforcement Administration has been training the Counter Narcotics Police, while the State Department focuses on building the capacity of the justice sector. In response to this challenge, the US government identified and applied a technical fix only. They decided to bring another person as the rule of law coordinator,[22] while the situation required deeper learning and analysis of the purpose, strategies and tactics of engaging with this sector in a country as complicated as Afghanistan.
The question of rule of law in the context of Afghanistan cannot be addressed with technical answers. It requires learning, both by Afghans and the international community. This learning is going to take longer than anticipated by most development sector players. Patience is going to be a virtue of the highest order in this context, not just for Afghans, but also and more importantly for the world outside of Afghanistan. Effective learning requires acknowledgement of the existing pool of knowledge and its genuine analysis prior to introducing new elements.
Afghans need to do their share of adaptive work by evaluating their values, preferences, habits and practices. The most challenging aspect of this analysis will be to figure out what should be left behind and what can be taken to the future. The process of distinguishing what is best suited for the coming future is a major transition challenge for Afghans. It will require Afghans to face immense loss. This requires preparation. This is going to take time.[23]
Assuming that the approach adopted by the international community is based on a fair diagnostic process, what is being asked of Afghans is simply too much. The people of Afghanistan are being asked to do away with their centuries’ old values, preferences, habits and practices without allowing for their internal adaptive learning to take place. It is going to be impossible to mobilize Afghans for this transition without a genuine acknowledgement of this loss. This acknowledgement has to come from all levels, especially from the advocates of the notion of “development in a hurry.” This genuine acknowledgement is missing.
Bibliography
Watkins, Calvert, The American Heritage Dictionary of Indo-European Roots, (Boston: Houghton Mifflin Harcourt Publishing Company, 2000).
Francis Fukuyama, The Origins of Political Order: From Pre-human Times to the French Revolution (New York: Farrar, Straus and Giroux, 2011).
Constitution of the Islamic Republic of Afghanistan, http://www.afghanembassy.com.pl/cms/uploads/images/Constitution/The%20Constitution.pdf
Martine Van Bijlert, The Kabul Bank Investigation: Central Bank Gives Names and Figures, Afghanistan Analysts Network, May 2, 2011, http://aan-afghanistan.com/index.asp?id=1663
Lianne Gutcher, Afghanistan’s Anti-Corruption efforts Thwarted at Every Turn, The Guardian, July 19, 2011, http://www.guardian.co.uk/world/2011/jul/19/afghanistan-anti-corruption-efforts-thwarted
Peter Graff, Karzai Ignored UN Pleas on Afghan VP Choice, Reuters, May 4, 2009, http://uk.reuters.com/article/2009/05/04/uk-afghanistan-election-fahim-sb-idUKTRE54340020090504
Patrician Grossman, Kabul’s Stealth Attack on Human Rights, December 26, 2011, http://www.nytimes.com/2011/12/27/opinion/kabuls-stealth-attack-on-human-rights.html
Martine Van Bijlert, The Quran Burning and the Different Faces of Restraint, Afghanistan Analysts Network, February 24, 2012, http://aan-afghanistan.com/index.asp?id=2542
Promoting the Rule of Law in Afghanistan: Justice and Security for All Afghan Citizens, GTZ Factsheet, May 2010, http://www.gtz.de/en/dokumente/en-factsheet-rule-of-law-afghanistan.pdf
Factsheet Rule of Law Stabilization Program, USAID, June 2011, http://afghanistan.usaid.gov/en/USAID/Activity/163/Rule_of_Law_Stabilization_Program__Informal_Component
Dennis Dunn, Don Chisholm and Edgar Mason, Afghanistan Rule of Law Stabilization Program (Informal Component) Assessment: Final Report, Jan 2011, http://afghanistan.usaid.gov/en/USAID/Activity/163/Rule_of_Law_Stabilization_Program__Informal_Component
Dean Williams, Real Leadership: Helping People and Organizations Face their Toughest Challenges, (San Francisco: Berrett-Koehler, 2005).
Pilar Domingo, Why Rule of Law Matters for Development, Overseas Development Institute Opinions, May 2009, http://www.odi.org.uk/opinion/docs/4192.pdf
Ronald Heifetz, Leadership Without Easy Answers, (Cambridge: Belknap/Harvard University Press, 1994)
[1] Watkins, Calvert, The American Heritage Dictionary of Indo-European Roots, (Boston: Houghton Mifflin Harcourt Publishing Company, 2000).
[2] Francis Fukuyama, The Origins of Political Order: From Pre-human Times to the French Revolution (New York: Farrar, Straus and Giroux, 2011), 253.
[3] Ibid., p. 246.
[4] Ibid., p. 262.
[5] Ibid., p. 246.
[6] Ibid., p. 245.
[7] Ibid., p. 252.
[8] Ibid., p. 315.
[9] Watkins, Calvert, The American Heritage Dictionary of Indo-European Roots, (Boston: Houghton Mifflin Harcourt Publishing Company, 2000).
[10] Fukuyama, The Origins of Political Order: From Pre-human Times to the French Revolution, p. 260.
[11] Martine Van Bijlert, The Kabul Bank Investigation: Central Bank Gives Names and Figures, Afghanistan Analysts Network, May 2, 2011, http://aan-afghanistan.com/index.asp?id=1663 and Lianne Gutcher, Afghanistan’s Anti-Corruption efforts Thwarted at Every Turn, The Guardian, July 19, 2011, http://www.guardian.co.uk/world/2011/jul/19/afghanistan-anti-corruption-efforts-thwarted
[12] Peter Graff, Karzai Ignored UN Pleas on Afghan VP Choice, Reuters, May 4, 2009, http://uk.reuters.com/article/2009/05/04/uk-afghanistan-election-fahim-sb-idUKTRE54340020090504
[13] Patrician Grossman, Kabul’s Stealth Attack on Human Rights, December 26, 2011, http://www.nytimes.com/2011/12/27/opinion/kabuls-stealth-attack-on-human-rights.html
[14] Fukuyama, The Origins of Political Order: From Pre-human Times to the French Revolution, p. 274.
[15] Ibid., p. 275.
[16] Article 1, 2 and 3 of the Constitution of the Islamic Republic of Afghanistan, http://www.afghanembassy.com.pl/cms/uploads/images/Constitution/The%20Constitution.pdf
[17] Martine Van Bijlert, The Quran Burning and the Different Faces of Restraint, Afghanistan Analysts Network, February 24, 2012, http://aan-afghanistan.com/index.asp?id=2542
[18] Promoting the Rule of Law in Afghanistan: Justice and Security for All Afghan Citizens, GTZ Factsheet, May 2010, http://www.gtz.de/en/dokumente/en-factsheet-rule-of-law-afghanistan.pdf
[19] Factsheet Rule of Law Stabilization Program, USAID, June 2011, http://afghanistan.usaid.gov/en/USAID/Activity/163/Rule_of_Law_Stabilization_Program__Informal_Component
[20] Dennis Dunn, Don Chisholm and Edgar Mason, Afghanistan Rule of Law Stabilization Program (Informal Component) Assessment: Final Report, Jan 2011, http://afghanistan.usaid.gov/en/USAID/Activity/163/Rule_of_Law_Stabilization_Program__Informal_Component
[21] Dean Williams, Real Leadership: Helping People and Organizations Face their Toughest Challenges, (San Francisco: Berrett-Koehler, 2005), p. 14. And Pilar Domingo, Why Rule of Law Matters for Development, Overseas Development Institute Opinions, May 2009, http://www.odi.org.uk/opinion/docs/4192.pdf
[22] Dennis Dunn, Don Chisholm and Edgar Mason, Afghanistan Rule of Law Stabilization Program (Informal Component) Assessment: Final Report, Jan 2011, http://afghanistan.usaid.gov/en/USAID/Activity/163/Rule_of_Law_Stabilization_Program__Informal_Component
[23] For more on adaptive leadership, please see, Ronald Heifetz, Leadership Without Easy Answers, (Cambridge: Belknap/Harvard University Press, 1994), and Dean Williams, Real Leadership: Helping People and Organizations Face their Toughest Challenges, (San Francisco: Berrett-Koehler, 2005).