Author's note: The author wishes to acknowledge the wise counsel of Robert Hager and John C. Huffer, and the valuable manuscript critiques of Robert F. Williams and W. Lawrence Church, all of them attorneys, who as advisors and teachers have greatly contributed to strengthening legal education and practice in Afghanistan. Among the many Afghans who graciously facilitated the research, particular thanks is due to officials in the Ministry of Justice and the Legal Research Department. The project was also assisted by a grant from the Near and Middle East Committee of the Social Science Research Council.

¹ For a general discussion of Islamic law, see Joseph, Schacht, An Introduction to Islamic Law (London: Oxford University Press, 1964);Google ScholarNoel, J. Coulson, A History of Islamic Law (Edinburgh: Edinburgh University Press, 1971);Google Scholar and James N. D. Anderson, Islamic Law in the Modern World. A useful source book is Herbert, J. Liebesny, The Law of the Near and Middle East (Albany: State University of New York Press, 1975).Google Scholar

² The 1973 coup d'etat is described and analyzed in Louis, Dupree, Afghanistan (Princeton: Princeton University Press, 1973), pp. 753–760.Google Scholar Also see Christine, F. Ridout, “Authority Patterns and the Afghan Coup of 1973,” The Middle East Journal 29 (Spring, 1975), 165–178.Google Scholar

³ Indeed, the Republican Decree, No. 3, issued July 26, 1973, required judges to apply Islamic law in cases where gaps existed in the statutes. Similar provisions are found in Articles 69 and 102 of the 1964 Constitution.

⁴ Writing in the early 19th century, the British traveler-diplomat Mountstuart Elphinstone observed: “The usefulness of Cauzees' courts is in a great measure destroyed by the corruption which prevails in them, in town and their neighborhood. Justice is further impeded by the power and influence of the great.” Kingdom of Caubul (London: Longman, Hurst, and John Murray, 1815), p. 263.Google Scholar

⁵ For a more general discussion see Hager, L. Michael, “The Role of Lawyers in Developing Countries,” in ABA Journal 58 (11, 1972), 33–38.Google Scholar

⁶ Many of these same observations are made by Church, W. Lawrence, “Law in Afghanistan,” Law Asia 3 (04, 1972), 457–470.Google Scholar

⁷ Approximately seventy students had elected to study in the judicial section of the faculty in 1974.

⁸ The remainder follow a program in Islamic education which typically prepares them for a teaching career. This division of the faculty was instituted in 1970.

⁹ Most students gain admission to the University through a general examination and qualify for particular faculties on the basis of both overall scores and performance on certain portions of the examination. Relative to the University's other eleven divisions, Law and Political Science is considered a prestige faculty, rated third or fourth by most observers. The Islamic Law faculty is the only one with an independent examination for admission.

¹⁰ Long-standing communal resentments make the systematic collection of ethnic statistics politically sensitive.

¹¹ For an examination of this variant jurisprudence see Asaf, A. A. Fyzee, “Shi'i Legal Theories,” in Majid, Khadduri and Herbert, J. Liebesny, eds., Law in the Middle East (Washington: The Middle East Institute, 1955), pp. 113–131.Google Scholar

¹² The size of the program has fluctuated overtime. Initially it enrolled thirty-six trainees yearly. In what proved to be an overexpansion, the number was soon increased to fifty-six; only twenty- five graduates were recruited in 1971, and the number has remained roughly at this level. Even after completing the program, many graduates are obliged to serve, in effect, apprenticeships to senior judges for several years. Judges in primary courts must be over thirty years of age, and heads of three-member tribunals over thirty-two.

¹³ Many other graduates of the judicial curriculum of this faculty enter the Ministry of Interior where they are assigned as district officials (woleswals).

¹⁴ An additional 132 madressa-trained individuals continue to be employed in quasi-professional jobs.

¹⁵ The Attorneys Law specifies a minimum age of 25 for a license.

¹⁶ A bachelor's degree allows law professors and other faculty members to enter the governments' ment's promotion system at a somewhat higher level; even so, it entitles them to an entrance yearly base salary of the equivalent of only $700 to $900.

¹⁷ The most prestigious study grants were offered by the U.S.-sponsored Legal Development Training Program which, between 1973 and 1975 alone, enrolled over 25 Afghans at George Washington University for up to 18 months of study. The Program was conceived by AID officials and an American specialist in Islamic law in the hopes of upgrading the legal skills and effectiveness of law-trained, middle-level personnel through the study of American legal principles and procedures. Afghan authorities in effect controlled the selection of grantees. Senior officials in the Ministry of Justice, the University and the court system initially designated candidates and later ratified the choices of the American advisors.

¹⁸ Church describes in detail current procedures and problems, op. cit., 463–466.

¹⁹ Investigations of negligence of judges and other court personnel between mid-1974 and mid-1975 resulted in 58 persons being subjected to some disciplinary action. Another 45 were cleared of charges and only five received court-directed punishments. Kabul Times, 05 6 and 7, 1975.Google Scholar

²⁰ Prior to the coup, the Supreme Court had grown increasingly assertive and competitive with the executive. Claims of exclusive powers of judicial review, based on Article 64 of the 1964 Constitution, led the Supreme Court to assert that it would refuse to apply any law it found to be in violation of either the Constitution or Islamic law. In the months before the coup, the Court had also cited provisions of the Constitution in its refusal to assume a supervisory role in the scheduled parliamentary elections.

²¹ Church, , op. cit., p. 466.Google Scholar

²² David, De Santillana, “Law and Society in Islam,” in Benjamin, Rivlin and Joseph, Szyliowicz, eds., The Contemporary Middle East (New York: Random House, 1956), p. 86.Google Scholar

²³ A Penal Code (Qānun-i-Jaza) was promulgated in 09, 1976.Google Scholar It was the first attempt to identify and define a wide range of essentially secular provisions since the short-lived 1924–25 Penal Code introduced by reformer King Amanullah(1919–1929). The Afghan Civil Code (Qānuni-Madani) is directly based on Islamic and customary law and, as Dupree comments, “represents a giant step forward in introducing systematic law in Afghanistan.” Louis, Dupree, “Toward Representative Government in Afghanistan,” American Universities Field Staff Reports, Asia Series, No. 14. 02, 1978, 4–5.Google Scholar

²⁴ The challenges faced by modernizers who sought to use law to facilitate social change are described by Leon, Poullada, Reform and Rebellion in Afghanistan. 1919–1929 (Ithaca: Cornell University Press, 1973).Google Scholar Also see Rea, Talley Stewart, Fire in Afghanistan (Garden City: Doubleday, 1973).Google Scholar

²⁵ Church, , op. cit., p. 460 contends that selective applications of law can in fact be a legal strength in a society that remains largely static.Google Scholar

²⁶ John C. Huffer develops these thoughts more fully in a legal training proposal to USAID, Kabul, September 1973. A broad treatment of legal development in Afghanistan is offered by Gerald P. Williams, “The Role of Law in the Development Process,” an unpublished paper, delivered to the Association of Asian Studies, Boston, March, 1974.