chapter  1
6 Pages

Introduction: Justice reform and statebuilding in Afghanistan

What is law? This question lies at the very basis of the legal science. Since the times of Ancient Greece, philosophers and legal theorists have always tried to give a plausible answer, elaborating complex theories on the origin and the essence of law. In particular, scholars have attempted to answer three further questions: What does it mean to follow a ‘rule’? What is the difference between a legal and a moral obligation? More importantly: what is the difference between being obliged by force and obliged by law?2 There are two possible approaches in responding to such queries. They reflect two distinct notions of the legal phenomenon. On the one hand we find the ‘autocratic’ conception of law: law is the rule imposed by the mighty, the tangible manifestation of a political order. In contrast, according to the ‘sociologic’ conception of law, law may be also considered as a social phenomenon, a product of the society, a set of norms which regulate the life of society, according to its beliefs and cultural orientation. The first notion entails a top-down approach in the formation of law: law descends from the mighty to the society. In the second case, law simply emerges from the society as a consequence of people’s life.