Legal transplants as tools for the reform of Afghanistan’s criminal law framework. An evaluation of the Interim Criminal Procedure Code 2004 and the Counter Narcotics Law 2005

Jupp, John (2012) Legal transplants as tools for the reform of Afghanistan’s criminal law framework. An evaluation of the Interim Criminal Procedure Code 2004 and the Counter Narcotics Law 2005. Doctoral thesis (DPhil), University of Sussex.

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Abstract

The criminal law frameworks of countries that have been the subject of international
peacekeeping operations and military interventions often reveal an urgent requirement
for reform. Destabilised by conflict, existing frameworks may be discriminatory and
inconsistent with international human rights and due process standards. New law may
be imperative to promote the development of fair and effective justice systems, rule of
law and transitions from conflict to peace. While the transplantation of readily-available
law can be an appealing solution a fundamental concern for legislators is whether it
represents a reasonable and effective mechanism for developing vital post-intervention
criminal law reform. This thesis addresses this issue by examining the Interim Criminal
Procedure Code 2004 and the Counter Narcotics Law 2005, two laws developed by
legal transplantation in Afghanistan, the most recent example of a country where the
international community is engaged in post-intervention criminal law reform. It does this
by firstly developing a new evaluative test developed from an examination of theoretical
perspectives on transplant feasibility. It then applies this test using quantitative data
supported by original qualitative research from interviews with senior Afghan and
international legal personnel. It finds that neither law has been successful. Their
transplanted content and the processes of transplantation have reduced the extent to
which they have been accepted and achieved their objectives and have increased their
potential to be ‘lethal’ transplants capable of promoting injustices, generating
destabilising discontent and moderating rule of law promotion. This study questions the
assumption that it should always be reasonable to develop post-intervention criminal
law by means of legal transplantation. The reasonableness of relying on legal
transplantation will depend on the sensitivity with which it is employed, requiring
knowledge of legal transplant feasibility, local history and legal traditions and the prior
application of the proposed evaluative test to assess potential receptivity

Item Type: Thesis (Doctoral)
Schools and Departments: School of Law, Politics and Sociology > Law
Subjects: K Law > KL-KWK Asia and Eurasia, Africa, Pacific Area, and Antarctica > KN Asia. South Asia. Southeast Asia. East Asia > KNF Afghanistan
Depositing User: Library Cataloguing
Date Deposited: 18 May 2012 08:44
Last Modified: 25 Aug 2015 14:04
URI: http://sro.sussex.ac.uk/id/eprint/39232

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