Democracy and the Rule of Law in Afghanistan: A Cautionary Tale

Abstract

The Taliban’s ouster in 2001 presented a historic opportunity to break away from Afghanistan’s despotic past and transition toward democratic governance. This article argues that the viability of Afghanistan’s democratization hinged, in key part, on institutional compliance with the rule of law. Put differently, Afghanistan’s recent authoritarian reversion was preceded by “constitutional retrogression,” particularly via systematic assault on the rule of law. By examining the roles of the legislature and presidency, the article contends that the 2004 constitution’s flawed separation of powers—in tandem with rampant executive overreach and a deficient electoral system—eroded key democratic norms and, thereby, diminished the legitimacy of the underlying regime. This mounting legitimacy deficit, paired with associated governance woes, emboldened and empowered opposition groups. With the Taliban back in power, Afghanistan’s autocratic reversion serves as a cautionary tale on the perils of rule of law decay.

Keywords: Afghanistan, Afghan Law, Rule of Law, Democracy, Democratization, Constitutional Law, Separation of Powers, Executive Overreach, Legislature, Legislative Oversight, Elections, Electoral System, Comparative Law, Legal Reform, Law and Development, Law and Society