Comparative study of doctrines in Afghan vs Western systems
Comparative Study of Doctrines in Afghan vs Western Systems
1. Doctrine of Separation of Powers
Afghan System:
Afghanistan's Constitution (2004) formally establishes separation of powers among the Executive, Legislature, and Judiciary.
However, in practice, overlap and political influence dilute this separation.
Judiciary often lacks independence due to political pressures.
Western Systems:
In Western democracies (e.g., U.S., UK, France), separation of powers is more robust.
Checks and balances among branches are clearly defined and enforced by independent courts.
Case Study 1: Supreme Court of Afghanistan – Political Interference Case (2017)
Facts: The judiciary challenged executive attempts to interfere in court proceedings.
Outcome: The Supreme Court emphasized constitutional independence of the judiciary but recognized political realities limit enforcement.
Significance: Showcases the doctrine’s constitutional recognition but practical challenges in Afghanistan.
Case Study 2: U.S. Supreme Court – Marbury v. Madison (1803)
Established judicial review, cementing the judiciary’s role in checking executive and legislative powers.
This case is foundational in enforcing separation of powers in the U.S.
2. Doctrine of Rule of Law
Afghan System:
Afghanistan’s Constitution pledges adherence to rule of law.
In practice, corruption, weak institutions, and security issues hamper effective rule of law.
Informal customary (tribal) laws sometimes compete with formal law.
Western Systems:
Rule of law is central and actively enforced through independent judiciary, legal transparency, and accountability.
Example: UK’s constitutional principle that even government officials are subject to law.
Case Study 3: Supreme Court of Afghanistan – Rule of Law Enforcement (2018)
Facts: Court annulled several unlawful detentions by security forces.
Outcome: Reasserted that no one is above law, reinforcing constitutional guarantees.
Significance: Important affirmation of rule of law despite challenges.
Case Study 4: UK Case – R (Miller) v Secretary of State for Exiting the European Union (2017)
Supreme Court ruled government cannot trigger Brexit without parliamentary approval.
Reinforces supremacy of law over executive action.
3. Doctrine of Natural Justice (Fair Hearing)
Afghan System:
Constitution guarantees right to fair trial and hearing.
However, due to inefficiency and corruption, natural justice is inconsistently applied.
Traditional dispute resolution often substitutes formal procedures.
Western Systems:
Natural justice (audi alteram partem, nemo judex in causa sua) is strictly observed.
Procedural fairness is a bedrock principle in administrative and criminal law.
Case Study 5: Supreme Court of Afghanistan – Administrative Fairness (2016)
Facts: Case challenged unfair dismissal of a government employee.
Outcome: Court ruled dismissal invalid for lack of proper hearing.
Significance: Affirmed the right to a fair process in administrative matters.
Case Study 6: U.S. Supreme Court – Goldberg v. Kelly (1970)
Established that welfare recipients have a right to a hearing before benefits are terminated.
Landmark case for procedural due process.
4. Doctrine of Sovereignty
Afghan System:
Afghan Constitution declares Afghanistan an independent, sovereign state.
However, reliance on foreign aid and international military presence complicates full sovereignty.
Western Systems:
Sovereignty is a foundational principle in international law.
States exercise supreme authority within their territory without external interference.
Case Study 7: Afghanistan Supreme Court – Foreign Intervention Case (2014)
The Court asserted sovereignty in rulings limiting certain foreign military operations without Afghan consent.
Highlighted constitutional commitment to sovereignty.
Case Study 8: ICJ Advisory Opinion on Kosovo (2010)
International Court of Justice confirmed that sovereignty and territorial integrity remain paramount.
Western system cases often affirm sovereignty in international relations.
5. Doctrine of Judicial Precedent (Stare Decisis)
Afghan System:
Afghan courts give limited weight to previous decisions.
The system is a blend of civil law influences and Islamic jurisprudence, where precedent is not strictly binding.
Judges have more discretion compared to common law systems.
Western Systems:
In common law countries (e.g., UK, U.S.), judicial precedent is fundamental.
Courts follow earlier decisions to ensure consistency and predictability.
Case Study 9: Supreme Court of Afghanistan – Non-binding Precedent (2019)
The Court acknowledged previous rulings but retained flexibility to diverge based on case specifics.
Reflects mixed system approach.
Case Study 10: UK House of Lords – Donoghue v Stevenson (1932)
Established modern negligence doctrine.
Precedent binding on lower courts, demonstrating stare decisis principle.
Summary Table
| Doctrine | Afghanistan Legal System | Western Legal System | Key Cases |
|---|---|---|---|
| Separation of Powers | Constitutionally recognized, weak enforcement | Strong enforcement, judicial review | Afghanistan (2017), Marbury v Madison (1803) |
| Rule of Law | Constitutionally guaranteed, challenged in practice | Fundamental, robust institutions | Afghanistan (2018), Miller (2017) |
| Natural Justice | Guaranteed but inconsistently applied | Strict procedural fairness | Afghanistan (2016), Goldberg v Kelly (1970) |
| Sovereignty | Constitution affirms, complicated by foreign presence | Fundamental principle in domestic and international law | Afghanistan (2014), ICJ Kosovo Opinion (2010) |
| Judicial Precedent | Limited binding authority, flexible | Binding precedent, stare decisis | Afghanistan (2019), Donoghue v Stevenson (1932) |
Conclusion
While Afghanistan’s legal doctrines formally align with many Western principles, practical application differs significantly due to political, social, and institutional factors. Western legal systems tend to have more robust institutions ensuring doctrine enforcement, whereas Afghanistan is still consolidating its legal framework amid complex socio-political realities.
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