Analysis of Afghan Contract, Civil, and Tort Law

Table of Contents

Introduction2

Criminal Law 2

Criminal Prosecution Framework…………….......……………4

        Criminal Procedure…………………………………………………...5

Tort Law7

Contract Law ………8

        Offer…………………………………………..…………………..…………8

        Acceptance………………………………………………………………..9

        General Comparison to U.S…….…………………..…………….10

        Capacity……………………………………………..…………………...11

Conclusion……………………………………….………….....12

Bibliography14

Afghan law is an interesting and unique mixture of State legislation, Islamic law, and local customs. The recent upheaval and invasion by the U.S. as well as the influence of the Taliban has made it very challenging for a viable, State legal system to take root. The recent invasion by the U.S. is just another episode in Afghanistan’s long list of invaders, dating back to Alexander the Great and Genghis Khan and continuing to more recent times with the Soviet Union in the late 20th century. This constant fighting has been a contributing factor to the lack of a strong central government, in its absence, Islamic and tribal law has been the guidelines for which people follow in their daily lives. This influence is even practiced in courts, for instances where the Afghan Civil Code is silent, the courts will default to the Islamic Law of Shari’a, and when the Shari’a is silent the courts will issue rulings based on public customs, known as Pashtunwali. The influence of Islam on Afghan law is undeniable as no law can be passed that isn’t in accordance with Islam, and the Sunni Hanafi School of law is the dominant school of legal thought. Before the first written constitution in 1923, Sharia’a was the main source of law and this influence continues today, even as the 2004 constitution granted many of the same rights as can be seen in the developed world, Islamic law and tribal customs still regulate how women are treated and how people handle disputes. The further advancement of unified criminal law practices in Afghanistan was halted in 1996 due to the Taliban rule.  During the time of Taliban rule, Shari’a law was re-implemented as the only form of criminal justice procedure in the country and served as a moral code for its citizens, effectively taking a step back in the advancement of a central government controlled legal system. In this analysis we will examine the criminal, tort, and contract law that is implemented by the Afghan government, as well as the actual legal practices that are influenced by Islamic and tribal law.