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Bar News - May 19, 2006


The Koran, the Whip, and the Value of the Legal Profession

By:

Richard B. McNamara
Richard B. McNamara

Since the American invasion in 2001, and the fall of the Taliban, Afghanistan has been struggling to join the Twenty-first Century.  So far, it appears there is far to go. 

           

The April 21, 2006 issue of The Economist reports that a “Dickensian mood” pervades Kabul’s legal world.  The justice system is described as corrupt and ineffective and without resources; outside Afghanistan’s main cities there are few police, fewer functioning courts and justice is dispensed by tribal and religious leaders.  Few lawyers and judges have training in Western legal systems.  The Supreme Court is controlled by hard-line clerics, led by the septuagenarian Fazul Hadi Shinwari, whose office is adorned only with a Koran and a whip.  He said recently that women could not become Supreme Court justices because they menstruate, rendering them unfit to handle the holy book for several days each month.

           

Nevertheless, some reforms have begun, as more progressive elements of Afghanistan’s leadership attempt to develop laws and institutions that will secure human rights and, through the development of a functioning legal system, advance the country’s economic fortunes.

           

Afghanistan has what The Economist describes as a “jarring mix of western style secular and Islamic laws”; on the one hand, the new constitution introduced in 2004 promises freedom of speech and religion and sexual equality.  On the other hand, conservative judges cite an article of the constitution declaring that in Afghanistan, no law can be contrary to the beliefs and provisions of the sacred religion of Islam, and hold that the testimony of female witnesses is worth, under Islamic law, half that of men.

           

The conflicting strands in Afghan society produce mismatches in aspirations and ability.  A new anti-narcotics law is a typical example; drafted by Western lawyers, it runs to 55 detailed pages.  But there is no professional, knowledgeable Afghan Bar.  There is little legal education, and so few Afghan legal practitioners can master, much less apply, the new anti-narcotics law. 

           

It is apparent that, whatever one personally thinks of the values espoused by Afghanistan’s judges, in order for Afghanistan to join the economic mainstream, some way to protect individual rights, and protect reasonable expectations of business people must be found.   Afghanistan is a stark reminder that a functioning legal system provides structure and order, and that lawyers play a critical role in a functioning legal system.

           

On January 19, 2006, the Board of Governors of the New Hampshire Bar Association adopted a statement on the value of lawyers to society and the justice system.  We recognized in that statement that our American society places a high value of the rights of individuals and that even the justice system’s harshest critics recognize that protection of the minority from oppression is an essential role of the courts.  Lawyers’ work in vindicating the rights of the individual, even in the face of a vocal and disapproving majority, is perhaps the profession’s highest calling.  But the value of our profession is greater than its role as a protector of minorities.  As the NHBA statement notes:  “The legal profession is the institution to which society turns as the repository of legal knowledge and the history of the development of the law, giving context and meaning to the letter and to spirit of the law.”  Our way of life is dependent upon cooperation and an economic system can only function if individuals can work cooperatively, make promises, and rely on the fact that those promises will be enforced.

           

Afghanistan seems nearer to us than it did 20 years ago.  Perhaps this is because globalization is occurring at a geometric rate.  Thomas Friedman’s best selling book, The World is Flat, illustrates the way in which the world is shrinking, as ideas and information travel electronically over national borders.  We learned on September 11, 2001 that what happens in Afghanistan can profoundly affect American life.  But as the economic boundaries between the societies of the world become more permeable, we need to recognize that our legal system provides the framework that makes our lives possible. 

           

This is worth remembering as the role and even the worth of lawyers in modern society are questioned by some.  As Heraclitus held, the only real constant is change, and careful examination of our system of justice is certainly necessary if our justice system and our profession are to continue to serve society’s needs.  But as our profession changes, we should be ever mindful of the critical role the rule of law plays in civilization, and of the fact that we as lawyers have much to offer the rest of the world.

 

Richard B. McNamara is president-elect of the NH Bar Association and will take office at the Annual Meeting in June.  He has been a member of the Bar since 1975.  He practices with the law firm of Wiggin & Nourie in Manchester.

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