Rule of Law in Iraq & Afghanistan

[jmm99]

SJAs are not the problem.

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LawVol - Good to see you back posting.

As I've thought about this more and more over the years (40+ as a lawyer), I think we have the real "legal process" a$$ backwards.

Our formal construct for what rules a "decision-maker" looks like this - in presumed order of impact on the decision (using Quotes to set off the points):

1. Doctrinal Law (usually written) as read and interpreted by the decision-maker.

2. Living Law (the "law" as it exists in the decision-maker's noggin without deeply pouring into the written law)

3. Social Norms (usually near and local) accepted by the decison-maker.

Items 2 & 3 tend to be ignored by legal formalists.

I'd suggest that the real "legal process" is like so - same elements reversed:

1. Social Norms (usually near and local) accepted by the decison-maker.

2. Living Law (the "law" as it exists in the decision-maker's noggin without deeply pouring into the written law)

3. Doctrinal Law (usually written) as read and interpreted by the decision-maker. If this does not follow the accepted social norms, the decision-maker will interpret the Doctrinal Law to accord with Social Norms and Living Law.

I have used this "strategy" for decades - obviously not as blatantly as I present it here - and it has worked well at both the trial and appellate levels.

In the case of a Astan village decision-maker, national Constitutional law and international law are so far removed from his Social Norms and Living Law that one should not expect him to pay much attention to them at all.

Regards

Mike