What you say, fits with what Jon said here, viewed from a slightly different angle.

This is, I suppose, the tasked mission:

from LawVol
We have to integrate the traditional system into the formal system and use it as a basis for "selling" the formal system to the locals. This is a generational effort though and American impatience isn't helping.
and I couldn't agree more about the time frame (indeed, generational). I toss out what follows for thought. Unfortunately, it's not based on in-country experience. However, it does go beyond staying in a Holiday Inn Express last nite (my wife kicked me out; I stopped beating her ).

What I think is based on what I've read (as one example, Justice Sector Support Program stuff - whose links I had here, The dumb lawyer again, and here, A little part of the picture, have gone South). Freely correct any errors I made.

If I am to be consistent with my methodology (as to steps 1, 2 & 3 used by the decision-maker), those steps would also apply to the decision-makers in Kabul. Their social norms seem to be more "Western" (even "USAian" in many cases) and I suspect the "tailored suit" makes many of us (USAians) more comfortable than we are with the villager who sits there picking his feet while we talk (via one or more interpreters).

Those Kabulians have therefore taken up, into their system of social norms, part of the "Western" formal systems of international and national laws and part of the Sharia formal systems of national and local laws. The result is that their formal system of laws is within the framework of their social norms.

The issue you raise is what gets incorporated at the local level. I'd posit that the formal system (Doctrinal Law) has to be incorporated into the traditional system (Village Social Norms) - and that won't happen unless the formal system squares pretty much across the board with the traditional system.

To me - as a "Western" lawyer, the Taliban (pre-9/11) looked a rather "lawless" bunch; but looking back, I suspect they simply did not want to take on the longterm and thankless task of implementing a national sytem of laws. So, they have the Sharia as their law; but the Sharia that is applied (at least in the countries where Marc-André Lagrange has worked; see this thread, Mullah Omar: Taliban Rules and Regulations) is a "Living Law" (not exactly as written, but in the noggin of the decision-maker).

We might say that a generalized Doctrinal Law system is capable of supporting a range of Social Norms - the decision-maker can "interpret" it to do so. However, the Social Norms of a particular group are usually not sufficiently flexible to support a wide range of Doctrinal Law systems. Thus, a Doctrinal Law system (if it has any real meaning to a population group) has to accord with the Social Norms of that group - either by being expressly drafted, or by "interpretation", to meet those norms.

Do the Kabulians and the Villagers have contradictions in Social Norms ?

Regards

Mike