Corruption, Legal Modernisation and Judicial Practice in Afghanistan

Abstract

Afghanistan's justice system is currently at a crucial and troubled stage of development that will determine its effectiveness. This article focuses on the phenomenon of corruption inside judicial institutions. By integrating the analysis of narratives of corruption with the observation of judicial practice and a critical approach to the reconstruction process, I argue that in Afghanistan, the phenomenon of corruption can be understood in terms of its "double institutionalisation", whereby mechanisms of exchange and of compensation, both already affirmed at the level of social practice, find a possibility of reaffirmation (of re-institutionalisation) in the legal system itself. The creation of an economic system that depends on international aid, the consolidation of a state apparatus over-determined by warlordism and foreign influences, and the process of legal modernisation itself all play an important role in the re-institutionalisation and radicalisation of corruption. By taking into consideration this scenario, I adopt an ethnographic perspective to explore some of the effects of corruption on the work of judges and on the access to justice itself.

Hypothesizing directional causality between the governance indicators and economic growth: the case of Afghanistan

“…This development paved the way for a quick recovery. The existence of widespread corruption in Afghanistan is another daunting problem that has weakened the quality of governance (see, for instance, [22,63]). According to International Transparency [69], Afghanistan is the 173rd least corrupt nation out of 183 countries across the world.…”

RevisitingCriticalLegal Pluralism: Normative Contestations in the Afghan Courtroom

“… 129 De Lauri (2013), p. 540 (“The normative space is thus configured as a space for bargaining where a variety of legal and political powers … attempt to affirm their normative force to the detriment of others. As for the dynamics of power and social hierarchies that this situation involves, the by-product is an inaccessible normative pluralism”). …”

Understanding corruption in the lower levels of the Afghan police force

“…First, the word corruption undertakes the meaning of fasad which is something that is culturally and socially detested, for example, as an act of dirtiness. Second, corruption may literally refer to reshwat / bakhshish which entail a bribe payment as a form of social contract in exchange for the police to perform their duty which is an inescapable evil (Barfield, 2012; De Lauri, 2013).…”

“…A broader conception of corruption may stretch beyond gift giving and other immoral acts such as minor gratuities but in some cultures lying and ‘womanising’ are considered as corrupt. In the context of Afghanistan, fasad concerns an act that is dirty such as prostitution and such an act is not culturally tolerated (De Lauri, 2013: 534). Corruption may be perceived as prevalent in some societies and focus more on moral and ethical obligations.…”