Limits of the Rule of Law: Negotiating Afghan "Traditional" Law in the International Civil Trials in the Czech Republic.

• Author: Ledvinka, Tomas

TABLE OF CONTENTS I. INTRODUCTION: FOREIGN-LAW ADJUDICATION BETWEEN LAW AND ETHNOLOGY 1124 II. THE COMPARATIVE LEGAL ANTHROPOLOGY OF LEOPOLD POSPISIL 1129 III. THE LAW-CULTURE DIVIDE IN INTERNATIONAL CIVIL TRIALS 1135 IV. RECOGNIZING AFGHAN "TRADITIONAL" LAW AS "LAW" 1148 V. TRANSNATIONAL AND TR[LAMBDA]NSLOCAL: THE LENS OF LEGAL SODALITIES 1156 VI. CONCLUSIONS 1159 I. INTRODUCTION: FOREIGN-LAW ADJUDICATION BETWEEN LAW AND ETHNOLOGY

Images of a territorially bounded law within and beneath nation-states often hide deeply seated legal and normative orders. The shifting global interdependence and technological advances in digital communication in particular have brought details of subnational orders of law closer to foreign-law adjudication. These subnational legalities form part of migrants' transnational bonds and foreign "local" legal systems, but they are not merely foreign statutes that have entered the intimate domestic legal framework. These encounters pose vexing practical questions for domestic legal arenas, which often require the help of legal-anthropological expertise. The example this Article explores, Afghan traditional legalities localized first in international civil trials in the Czech Republic as well as in research reports concerning the law in Afghanistan, reveals a new way that the law may be conceptually understood that is in line with Leopold Pospisil's theory of legal multiplicity.

The findings challenge an assumption embedded in the transnational idea of legal transplants that law should be seen as an objective, bounded, and territorially fixed system of values and principles. Instead of the laws travelling, this Article asserts that a significant number of Afghan traditional tribunals involve Afghan legal authorities travelling and crossing societal boundaries. This trans-societal and inter-community composition of traditional councils disintegrates the image of the traditional law as a limited local system. These two kinds of legal mobility are labelled "transnational" and "translocal" respectively, with the reservation that the term "local" still carries a subnational meaning but not necessarily one that is subordinate to the central nation-state.

Based on observations of foreign adjudication in international civil trials in the Czech Republic, this study further claims that the Afghan trans-societal composition of legal authorities is in fact incompatible with the transnational mobility of legal systems. Specifically, Afghan traditional infrastructure of intersocietal dispute resolution represents an untransferable aspect of migrants' legal identity assumed during foreign-law adjudication. This observation poses a more general hypothesis about the locus of law whose validity may be informed by data from different ethnographic sites.

This exploration starts at a peculiar place in foreign-law adjudication in the Czech Republic: Czech judges in the Czech Republic sometimes face the duty to apply foreign law in the context of international civil trials involving migrants that are governed by private international law. (1) Foreign law may be applied in various ways depending on the circumstances of the case and applicable conflict-of-law rules of private international law. In the Czech Republic, this instruction is laid out in Article 23 ("The Ascertainment and Use of Foreign Law") of the Act on Private International Law, which states that "a foreign body of laws which should be applied... must be applied in the way that it is used in the territory to which it applies." (2)

Czech judges navigate through the law of other countries with only its textual representations and their theoretical legal knowledge to guide them. When foreign law is applied as binding in private matters, the occasion requires "one-shot applications of foreign law to specific litigants" who are usually both foreigners. (3) Before this can happen, however, the judge has a legal imperative to conduct thorough research behind the scenes.

In cases of very unfamiliar legal cultures, such as that of Afghanistan, judges face an enormous task to identify the actual law and then to correctly familiarize themselves with it. Besides the legislation of the government in Kabul and the system of state courts, judges may also encounter information about unusual forms of law embedded in traditional legal authorities. Together with the data about the dysfunctional nature of the state courts and legislation, (4) these facts may spark a reorientation concerning where the actual law in Afghanistan is found.

Traditional Afghan dispute resolution bodies ("jirgas" or "councils" in related Western literature (5)) have a number of features that are unfamiliar to judges in the Czech Republic. These include the gathering of men sitting on the ground, ceremonial dress, discussions in the open air, sometimes under a tree with a backdrop of a parched landscape, or in some traditional inner meeting space, for instance in "a grandiose and beautiful hall... decorated with finely engraved wood." (6) Many ethnic groups "lack the regimented institutions of jirga, but most have traditions of ad hoc village assemblies (shura) that mediate and make decisions. Dispute resolution relies on village elders (rishsafid, Persian; aqsaqal, Turkish) or important political leaders to serve as judges or mediators." (7)

For the Western observer immersed in the ideas of the "rule of law" and the legal state, the nature of these traditional bodies is often unclear and difficult to interpret. Despite some superficial similarities to familiar courts--for example, although the men occupy the ground seemingly at random, it may be noticed that they actually sit in a circle, which may indicate a kind of a council of elders or trusted men in the community (8)--there is nevertheless nothing which truly mirrors the Western national court. Jirgas rely on neither legislation nor conventional symbols of the sovereign power of the state and offer no obvious indications that would allow for ranking these bodies under the expected forms within the rule of law. (9)

But descriptions of these institutions of Afghan law typically do not reach the Czech judges who are supposed to apply this law. The present discussion describes the gap that arises when one set of legal assumptions blinds the court to those of a relevant foreign jurisdiction, a problem of both theoretical and practical significance. It does so by examining the need for Czech judges to apply that foreign law just as it works in its original setting.

The lead author encountered this problem when working as a foreign law expert for the Czech Ministry of Justice from 2009 through 2015. His regular assignment was to help Czech judges to prepare the application of foreign law. During this time, he was also completing his studies in anthropology, and the peculiarity of his position as both researcher and practitioner resulted in a distinctive anthropological self-awareness when conducting routine legal activities and conversations with legal professionals. As a legal professional, he understood that Afghan law would be applied in specific cases by Czech courts as a "text" that is relatively easily transferable from one country to another, with the issue being at most its culturally differing legal interpretations. At the same time, as an anthropologist, he realized that this transplanted version of Afghan law differed abysmally from the law as applied in its original world, and that, while some of its knowledge was successfully transmitted during these trials, other parts were lost entirely. This opportunity led him to conduct research in the form of "para-ethnography," (10) which continued in 2018-2019 in order to seek a situated "participant comprehension" (11) of how Czech courts apply foreign law.

The study and application of foreign law, though a tricky and ambiguous task, is formally codified and ordinarily perceived as part of the judges' standard routine. It is the official duty of the court in question to take all necessary measures to ascertain the content of the foreign law, and the court can ask for help from the Ministry of Justice in this effort. (12) The author's "participant comprehension" (13) while helping Czech courts as one of their ministerial foreign law experts was further shaped through anonymous semi-structured interviews with twenty judges and judges' assistants, who were professionally committed to the application of foreign law, and by a number of the author's practical experiences and informal conversations with judges applying foreign law and other legal actors, especially the other ministerial experts, as well as by his self-reflection upon his daily routine. (14) These experiences included observations on the development of legal arguments about foreign law and the analysis of legal documents and internet sources. The formal hierarchy of the Czech courts was well reflected in the interviews--the author gained access to three tiers of the Czech justice system, with the Supreme Court of the Czech Republic represented by two judges, three experts of the court's foreign department, and one district judge who had previously worked at the Supreme Court. It may be noted, however, that the applications of Afghan law discussed below did not usually reach beyond the courts of first instance. This Article reflects a small but revealing segment of a variety of foreign-law adjudication cases in Czech courts that included the study of foreign law in particular: Afghan law was involved in four cases during the research periods.

This project employed specific ethnographic solutions that helped to situate "law" in the ethnological sense within the broader realm of normativities, practices, and cognitive operations that are conventionally considered legal practice. (15) First, the cases of foreign law's study and application were seen as the most appropriate ethnographic unit upon which to start the...