Working Paper 197

Title
Negotiating Afghan ‘Traditional’ Law in the International Civil Trials in the Czech Republic

Author
Tomáš Ledvinka

Department
Department 'Law & Anthropology'

Year of publication
2019

Number of pages
31

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Working Paper 197

Abstract
Along with whatever belongings they carry, migrants and refugees always bring their laws, cultures, and contextually specific experiences (feuds, state failures) in some form to their host countries. Various migrants’ identities may include law as a dimension that belongs to specific collectives (tribes, religious communities) beyond the nation-state. In contrast to the juridical notion of law as a dimension of the nation-state, legal systems within countries such as Afghanistan are sometimes classified as ‘legal systems based on reciprocity’, or ‘horizontal legal systems’. Encounters of judges and other legal experts in the Czech Republic with such legal systems within the framework of international civil trials are driven by an official imperative that the foreign law must be understood as the law truly applied in the country of origin. Such a situation unsettles deep-rooted notions of the state, generates uncertainty about conventional understandings of the law, and indicates the necessity of employing legal-ethnological conceptual tools. Drawing on empirical cases involving Afghan law in the form of foreign law in international civil trials, this paper investigates the difference between a legal understanding of Afghan law in the Czech legal framework, achieved mostly through the concept of state law, and an ethnological understanding of law in Afghanistan based on Pospíšil’s analytical concepts. Finally, it suggests the relevance of applying the analytical distinction between legal sodalities and legal modalities.