For ourselves and the generations to come : constitutional law in Afghanistan, 1964-2004

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2023-04-21

Authors

Hayden, Jeffrey T.

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Abstract

In the context of modern Afghan political and legal history, the 1964 and 2004 constitutions were once lauded as promising steps toward the country’s adoption of representative government, constitutionalism, and the equitable rule of law. However, the governments that instituted these documents —the Kingdom of Afghanistan and the Islamic Republic of Afghanistan, respectively— collapsed to political and social instability not long after adopting their constitutions. While historical and political commentary has blamed illiberal governance for the failure of these governments, relatively few projects have studied the 1964 and 2004 constitutions as potential contributors to this breakdown in governance. This thesis takes a comparative legal perspective to study the history of the 1964 and 2004 constitutions, their respective intellectual influences, and their effects on Afghan society in the 20th and 21st centuries. The first chapter centers on the pre-modern legal history of Afghanistan, including geographic and social influences on approaches to governance and the impact of the Barakzai monarchy on Afghan nationhood. The second chapter takes a comparative legal approach to analyze the contents of the 1964 and 2004 constitutions, the institutions both documents created, and their approaches to divesting and consolidating political power. The third chapter studies the practical application of the constitutions through the rule of law, their enumerated positions on religion, and the effect of the War in Afghanistan. This thesis argues that the 1964 and 2004 constitutions were greatly informed by authoritarian policies inherited from pre- and early modern Afghan political systems, particularly the primacy of centralized executive leadership. These practices incentivized autocratic political leadership, disincentivized strong representative governance, and undermined the rule of law under the 1964 and 2004 constitutional frameworks.

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