Faculty Publications


Freedom or Theocracy?: Constitutionalism in Afghanistan and Iraq

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This article analyzes the claim that the Bush doctrine, the declaration of President George W. Bush in September 2001 that all states harboring terrorists or otherwise supporting terrorism would see their leaders replaced by force, has profoundly advanced the cause of human rights in Afghanistan and Iraq. The article focuses on the constitutional process in Afghanistan, and its thesis is that the Afghan constitution symbolizes the unmistakable liberation of Afghanistan's people from the despotic and even genocidal rule of the Taliban, but that the constitution's many provisions requiring compatibility of government policy with an unspecified code of Islamic law may frustrate democratic demands for respect for international human rights standards and the country's civil law traditions. These provisions are particularly dangerous in the hands of the Afghan religious fundamentalists that have been elevated to prominent positions in the post-Taliban political and legal system. The article proposes four test cases for judging the implementation of Afghanistan's new constitution from the perspective of democracy and individual rights: the treatment of secular political parties, the use of blasphemy laws to undermine Afghan democracy, the revival of fundamentalist punishments such as stoning and amputation, and the ongoing oppression and enslavement of Afghan women and girls. It concludes by drawing parallels between the Afghan constitutional process and the political and legal transition of Iraq from a Baathist dictatorship into a so-called Islamic democracy. As in Afghanistan, the Iraqi government installed by the U.S. and its allies has established Iraq as a religious state with judicial review of legislation for conformity to an unspecified version of Islamic law, and Iraqi women and religious minorities continue to face grave violations of their human rights.