Lutforahman Saeed - Islam, Custom and Human Rights: A Legal and Empirical Study of Criminal Cases in Afghanistan After the 2004 Constitution

Human rights are one of the normative cornerstones of contemporary international law and global governance. Due to the complexities of actual or potential violations of human rights and in light of current crises, new and interdisciplinary research is urgently needed. The series Interdisciplinary Studies in Human Rights recognizes the growing importance and necessity of interdisciplinary research in human rights. The series consists of monographs and collected volumes addressing human rights research from different disciplinary and interdisciplinary perspectives, including but not limited to philosophy, law, political science, education, and medical ethics. Its goal is to explore new and contested questions such as the extraterritorial application of human rights and their relevance for non-state actors, as well as the philosophical and theoretical foundations of human rights. The series also addresses policy questions of current interest including the human rights of migrants and refugees, LGBTI rights, and bioethics, as well as business and human rights.

The series editors are Members of the Centre for Human Rights Erlangen- Nrnberg (CHREN), an interdisciplinary research center at Friedrich-Alexander- University Erlangen-Nrnberg. The Advisory Board brings together human rights scholars from a wide range of academic disciplines and regional backgrounds. The series welcomes suggestions for publications of academic research falling into the series subject matter.

More information about this series at http://www.springer.com/series/15339

This Springer imprint is published by the registered company Springer Nature Switzerland AG

The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

This book deals with a topic of outstanding relevance from both scientific and practical legal perspectives. It combines thorough empirical research with a sound study of legal documents and literature. The author had to tackle considerable obstacles, given the extreme form of legal and cultural normative pluralism in Afghanistan and the factual shortcomings in the Afghan judiciary and administration. It is extremely difficult to figure out which normative setting was and is to be applied in general and in the exemplary criminal law cases the author has researched and evaluated in detail.

The complexity of the topic is already demonstrated in the introductory remarks: while there are no provisions in Afghan criminal law dealing with the acts committed by the culprits, courts sentenced these persons on the basis of very general constitutional provisions enabling or demanding the application of Islamic law, while these outcomes are disputed both under Islamic law and human rights principles on the necessity of appropriately clear criminal law norms (nulla poena sine lege).

I highly appreciate the initiative of the author to engage in this research due to his extraordinary knowledge of the Afghan legal and social situation and his equally extraordinary capabilities to get access to information, which is usually not available to Western researchers. In his work, he successfully links more theoretical and general reflections on the applicable norms, including the intricate issues of interpreting Islamic norms, with concrete case studies. The book provides a wealth of information, observations, and very plausible evaluations of the Afghan legal scene, its extraordinarily complex normative basis, its institutions, and the interplay between societal expectations. It enables deep insights into the challenges for formulating and implementing laws, which are broadly accepted and apt to be implemented in a highly multicultural country with limited means for the state administration and judiciary, not to mention the intricate security situation in many provinces.

The book also sheds light on the widespread superficial application of Sharia rules, be it due to a lack of sound knowledge or under the pressure of public opinion. Furthermore, the author obviously counts among the very small number of Afghan legal scholars digging deeply into the international theoretical debate on the reasons and emanations of legal pluralism in the context of Islam-related legal issues. Thus, for the first time, the tensions between traditional approaches to the application of legal norms and the rule of law, which clearly limits the scope of discretion for administrations and courts alike, are discussed and commented on in detail. Furthermore, the author has developed sound suggestions for reforms enabling the implementation of human rights standards in coherence with the countrys culture.