Afghanistan Legal Ed Project Director Discusses Country’s Challenges and Progress After Year of Serious Security Concerns


March seems to have brought new optimism to the Afghan/U.S. relationship. President Ashraf Ghani of Afghanistan, described as a reformist leader, met with President Obama and the two emerged with not only a renewed security agreement and a promise by the U.S. to keep forces in the country—but a new commitment to the development of educational and civil programs to help the nascent democracy succeed.

This is familiar ground for Erik G. Jensen, professor of the practice of law at Stanford Law School and director of the Rule of Law Program. As faculty advisor to the first Rule of Law project, the Afghanistan Legal Education Project (ALEP), since it launched in 2007, Jensen has guided Stanford Law School’s student-driven initiative over the past eight years to achieve its goal of establishing a legal curriculum in Afghanistan. And the accomplishments of Jensen and ALEP’s students are many—achieved against the backdrop of a country in civil strife. They started with legal textbooks, teaming up with the American University of Afghanistan (AUAF) to write and translate ten so far—and the first to specifically address Afghanistan’s post-2004 legal system. They quickly turned their attention to legal education, developing innovative legal curricula to help Afghanistan’s universities train the next generation of lawyers and leaders. ALEP has since developed an extensive law curriculum at AUAF with strong support from the U.S. State Department’s Bureau of International Narcotics and Law Enforcement. In 2012, ALEP was awarded a $7.2 million grant from the State Department to expand AUAF’s legal studies program into a Bachelor of Arts and Laws degree-granting program—the first such program in the country. Together, ALEP and AUAF established a Department of Law to administer the degree program and support the top-notch law faculty. There are currently more than 330 students enrolled in AUAF’s law classes with many classes oversubscribed, attesting to the great need and demand for quality legal education in Afghanistan. In the interview that follows, Jensen discusses the recent visit to the U.S. by President Ashraf Ghani of Afghanistan, the D.C. conference on Afghanistan, and ALEP’s successes and challenges going forward.

Can you tell us about the recent conference in D.C. on Afghanistan?

Ambassador Karl Eikenberry and I helped to organize the conference and participated in it on March 16-17 in Washington, D.C., at the U.S. Institute of Peace.  The conference had been in the planning phase for months, but it so happened that it took place the week before President Ghani and CEO Abdullah’s visit to Washington. The conference was co-hosted by Stanford’s Center on Democracy, Development and the Rule of Law, Chatham House, and United States Institute of Peace (USIP). We think that it’s the best conference that we’ve attended on Afghanistan and we’ve attended many.It brought together policy specialists and government officials from around the world for important discussions on the long-term development and security support required to stabilize Afghanistan. The combination of the reformist government of Ashraf Ghani and an international community that is starting to learn from its many mistakes and fewer successes should yield better security and development results in the future.

It was very interesting reading the conference statement, which calls for peacekeeping while directing resources to education and civil society—and on taking a long view to allow real progress to take hold. It’s very much in line with the mission of ALEP [Stanford Law School’s Afghanistan Legal Education Project], isn’t it?

Where we are now is where I was hoping we would get for a long period: finally balancing some of the military interventions proportionately to interventions to strengthen the government, to strengthen civil society, and to strengthen education along the way.

One of the greatest things America has to export is an approach to education that cuts across cultural and national boundaries. Everyone wants to have a lively experience in the classroom. That’s not cultural imperialism, that’s just really appealing to the fundamentals of human nature and what stimulates the mind. And we’ve shown that education, particularly relating to the law, is essential for an emerging democracy and can produce tangible benefits—I hope well beyond my tenure.

President Ashraf Ghani of Afghanistan, who recently took over from Karzai, seems to have set the country on a new, more positive path. He met with President Obama just days before your conference and was well received. What’s your impression?

What a difference a leader can make in replacing acrimony with good will. It was really amazing to be in Washington to see this happen. President Ghani started out his first speech to the American people by thanking the U.S. for its blood and treasure and the sacrifice that it’s made for his country. This is a guy who not only understands U.S. politics, he understand that a motivating factor of U.S. foreign policy has always been the sense of doing good. Lord knows we’ve made many mistakes in Afghanistan—some stupid mistakes that we should have avoided. But, among the drivers of U.S. foreign policy, doing good and helping others has always been a part of the mix. President Ghani thanked the many Americans who have participated in trying to rebuild and reconstruct Afghanistan.

That long view is hard to come by in the world today, isn’t it?

I wrote a paper titled “Playing the Long Game: Legal Education in Developing Countries” and presented it to the law faculty in October. And what I saw in both these conferences—our output from the conference, from the policy paper, and from the Obama-Ghani joint statement—is a lot more emphasis on playing the long game than I ever thought I’d see. So I’m optimistic.

You know, when I signed up to be the faculty advisor for ALEP in its first year, I thought it could go belly up in eight months. And here we are eight years later having built a robust legal program with the American University of Afghanistan (AUAF). We’ve been through some difficult times in the project certainly, but the staying power of a critical mass of students and an enduring commitment on the part of the administration of the American University of Afghanistan, and the law faculty we’ve hired and work so closely with, is just inspiring.

I’ve been reminded over the past few years, just how important resilience is. And emerging from the rough times—through the really difficult and dangerous times of last year and emerging with the sort of Washington love fest that just happened, with an emphasis on the long-term interests and needs of Afghanistan—there’s no way you could’ve predicted this a year ago.

Have you ever met Ghani? Does he know about the work that ALEP has been doing since 2007?

Yes, we’ve met on several occasions at Stanford. By the way, his son was a Stanford undergrad and is now completing his PhD in economics at Berkeley. Ghani is a whip-smart development economist. He’s very committed to education. Indeed, the joint statement that he and Obama issued a few days ago features the importance of education as it highlights some of the long-term interests of both countries. It includes a focus on education, with a commitment to a 50 percent increase in the number of Fulbright scholars from Afghanistan and a recognition of the importance of education generally, and legal education specifically. I’d like to think that the American University of Afghanistan’s law degree-granting program is the jewel in the crown of legal education. A reason for its existence is to demonstrate what a center of excellence in legal education can and should do.

How hard has the past year been in Afghanistan?

Well, I’m going later this month but I haven’t been for 15 months, which is very unusual. 2014 started in January with an attack on a very popular restaurant in Kabul, where two employees of the American University of Afghanistan were killed. One of the employees, Alex Peterson, I knew and helped recruit for the political science department at AUAF. He was a London School of Economics PhD in political science and very keen to contribute to the reconstruction of Afghanistan. He’d been in Afghanistan for only five days when he was gunned down in a restaurant along with 20 others. It was awful, gut-wrenching. So, that’s how 2014 started. And, unfortunately, it didn’t get better. It was a really, really difficult year on the security front. It was so difficult that, for the first time since it was launched, I couldn’t take ALEP students to Afghanistan for their field work.

ALEP is now eight years along. Can you walk us through its accomplishments?
We’ve written and we’ll have published ten textbooks by this fall, many of which have been translated into Dari and Pashto. And then we have an ongoing revision project—we have second- and third-edition books coming out. Collectively, those textbooks are a primary source of critical analysis of Afghan law.

ALEP also helped to establish the legal curriculum at AUAF?

Yes. A lot of my time is spent on curriculum development. It is the product of intense interaction with the AUAF law faculty, Megan Karsh [the executive director of the Rule of Law Program], ALEP/SLS students and law students at AUAF. It’s a dynamic curriculum and I can’t tell you how proud I am of it. The collaborative effort acknowledges and seeks to understand the reality of legal pluralism on the ground in Afghanistan, with the usual secular sources but also religious sources of law and customary sources of law. It’s a laboratory in legal pluralism. Our law students at AUAF need to understand how to navigate these different jurisdictions and sources of law: how they overlap, complement each other, and conflict. And we now have five outstanding full-time law faculty at American University of Afghanistan that creatively integrate the realities of legal pluralism in Afghanistan in virtually every class that is taught.

How do you develop a legal curriculum from scratch?

Well, we’ve devised five or six pillars of the curriculum. One is Islamic law, because Islamic law cuts across everything in Afghanistan. It’s all of family law, it’s all of inheritance law, it’s very important in the criminal and civil codes and the constitution itself. Of course, we want to mitigate the hard edges of what some interpret as Islamic law, but we cannot and should not deny its existence. Commercial law is another pillar and we’ve developed an extensive set of commercial law courses.

Comparative law, the third pillar, both stands alone and cuts across the entire curriculum. Almost every course in the curriculum is comparative. Our students wrote a textbook two years ago on obligations—which is the combination of our contracts and torts. They learned a lot of civil law. Among colleagues at Stanford I describe this project as an opportunity for our students to work rigorously on applied comparative law, that’s what the students are really engaged in.

In Islamic law, they’re looking at comparative schools of thought in Islamic law. In obligations, they’re looking at what’s happening in Egypt, what’s happening in jurisdictions within the region. A comparative focus is very practical because in many respects, the law is under-developed in Afghanistan. So, when we don’t have sources of law in Afghanistan, we look at relevant sources of law in other jurisdictions – usually in the region – to suggest how the law might develop. Constitutional law is the fourth pillar. That pillar includes an in depth examination of the Afghan constitution as well as a dynamic course on comparative constitutional law. An AUAF Afghan female faculty member, filling what is traditionally a crucial role of the academy, actively publishes on problems with the implementation of the Afghan constitution. A fifth area of focus is criminal law. And then, finally – this is the ornament on the five pillars – the sixth is really developing a set of courses in legal practice. That includes practical courses on civil and criminal procedure. It also includes a clinical program. Our first clinic was launched last semester and that was the business law clinic. That clinic is ongoing and we will be developing other clinics. In addition to teaching critical thinking skills, we also want to teach practical skills so that students can draft contracts, memoranda and briefs, and know what they need to know to practice law in Afghanistan.

Can you tell us more about the new business clinic?
In the business clinic, AUAF law students are doing field research on the problems that Afghan businesses have in registering and other challenges in doing business, aside from the obvious security issues. So it’s of immediate importance to their business clients and the broader business community in Afghanistan. It’s very exciting.
Law is an undergraduate credential in Afghanistan, right, as in much of Europe?
Yes. Our students earn a BA/LLB—a joint degree, which takes four years and one summer school session. We’re about to celebrate the graduation of our first four law students, in the spring.

How exciting. The first class awarded a BA/LLB—

I’m tempted to attend the AUAF commencement in May. Three of the four graduating law students have received scholarships for LLMs in the U.S. This is a story of resilience and the long game. We’ve been at it for eight years and now we’re producing our first law graduates. We’ve produced graduates who have what we call a legal certificate that requires taking five classes. But to build up to the major in law, at least if it is to be done well, requires a significant investment and an extraordinary cadre of full-time faculty.

What kinds of careers might they expect to have?

We don’t anticipate that a majority of our students will be hanging out their shingle and practicing law immediately. We think that some will inevitably be taken into international practice, international business practice, but I expect our graduates to find homes in influential parts of the bureaucracy, in political life. And, as legal practices improve, I would expect more of our graduates to seek out careers in private practice, in prosecutorial services, and in the judiciary. To put it diplomatically, however, some of these legal institutions require significant reform before they can take full advantage of the capacities of our law graduates.

How’s enrollment?
We have 60 new students in the program this year, so it’s growing quickly. I’m really proud of everyone involved in the project. Stanford branding has been very important to the development of a capable law department at AUAF. Increasingly, now, the law department at AUAF is developing its own reputation of excellence within AUAF and within the broader community. A senior Afghan bureaucrat told me not so long ago, “Look, the AUAF law department delivers the best tertiary education in the country.”

It sounds like a bit more optimism than last year. I remember talking to you about it last year when things were really hard.
It’s been a hard year for the students too. Our ALEP students at SLS do not engage in developmental tourism. What they’ve done, by the time they get to go to Afghanistan, is a lot of really heavy lifting. The work that they do in writing these textbooks is really rigorous. And when they go to Afghanistan, they continue the work, getting valuable feedback and collaborating on projects. They see their textbooks being used by Afghan students eager to learn and being taught by excellent professors in a lively classroom setting. They get ideas on revision of textbooks, understanding the local circumstances better. And they see how important ALEP is—the work that they are doing is having a very real impact on the students who enroll and also on the society. So, that connective tissue was really strained over the past year because of the security situation. Students started to lose the sense of the immediacy of their work and all of us became concerned about the long-term viability of our project.
So security concerns prevented the field trip to Kabul this year—but you arranged a meeting in Bangkok?

Yes. We did. We realized that distance was affecting the esprit de corps and the morale of our own students—they’re working hard and they’re wondering what’s going to come out the other end, apart from all of the civil unrest that was taking place. So we thought a little outside the box and we had a workshop in Bangkok in January. Three of our professors from the American University of Afghanistan met 12 or 15 ALEP students in Bangkok. We talked about the curriculum; we talked about the textbooks that were being written and ways that ALEP members could otherwise contribute to building out the law program. Afghan faculty told the students, “Look, you are involved in a really important activity here. And these are the ways in which your work is meaningful on the ground at American University of Afghanistan.”
It re-energized us all and the students are now showing again the hyper-motivation that has been the hallmark of ALEP members over these eight years.

Now that the U.S. and Afghanistan governments are cooperating more closely, do you expect next year to be less violent?

Well, the fighting season is starting now. Those who have security clearance—and high security clearance—think that it’s going to be a bit of a messy year. But Afghans are more confident now of longer-term security than they were in the past two years.

Let’s circle back to Afghanistan President Ghani’s visit. Are you optimistic about his chances of success? Will things get better?

Ashraf Ghani signed the BSA, the bilateral security agreement, which is incredibly important. Former President Karzai refused to sign it, even though the vast majority of Afghans were for it. Ghani signed it. That was a first step in improving the sense of security felt by Afghans. Another incredible move that Ghani has made to improve the security situation in Afghanistan is to improve diplomatic relations with Pakistan. President Ghani went to Islamabad to meet with Prime Minister Nawaz Shariff and to Rawalpindi to meet the Army Chief of Staff, General Raheel Sharif. Ghani has been very effective in interacting with the Pakistanis. To put it simply, there can be no peace in Afghanistan absent rapprochement with Pakistan. Third, though you won’t see a lot of press coverage of this, the cooperation between U.S. forces providing air cover for Afghan ground operations has been much improved in recent months. More than at any other time since the fall of the Taliban.

I see an opportunity to strike a balance in U.S. support of Afghanistan, a balance where we maintain a smaller force that effectively backs up the Afghan forces on the one hand and provides strategic development assistance for the building of infrastructure, civil institutions, and civil society on the other hand.

Finally, if President Ghani can bridge to and effectively deploy the next generation of talented Afghans, including our law faculty and graduates at AUAF, there is good reason for optimism. Certainly, the urban centers of Afghanistan do not look at all as they did when the Taliban fell nearly fourteen years ago. A cadre of Afghans has been educated and trained both at home and abroad during that time. If they can help Afghan leadership push the old corrupt guys out of power, the next generation has the stuff to imagine and implement a vision of a peaceful, tolerant and developing Afghanistan.

Erik G. Jensen is a professor of the practice of law at Stanford Law School, director of the law school’s Rule of Law Program, and an affiliated faculty member at the Center on Democracy, Development, and the Rule of Law (CDDRL) at the Freeman Spogli Institute for International Studies at Stanford University (FSI). A lawyer trained in Britain and the United States, he has, for the last 25 years, taught, practiced, and written about the field of law and development in 30 countries. He has been a Fulbright scholar, a consultant to the World Bank, the Asian Development Bank, and the African Development Bank, and a representative of The Asia Foundation, where he currently serves as a senior advisor for governance and law. His teaching and research activities explore various dimensions of reform aimed at strengthening the rule of law, including the political economy of reform; the connections between legal systems and the economies, polities, and societies in which they are situated; and the relationship of Islam to the rule of law. As co-director of the Rule of Law Program, Jensen serves as faculty advisor to student-driven projects in Afghanistan, Bhutan, Timor-Leste, and Iraq that, with strong local partnerships, develop legal tools in these developing democracies.

AUAF’s state-of-the art undergraduate degree program in law, a partnership with Stanford University

Philosophy of ALEP and the relationship of legal education to state-building and rule of law. Interview with Professor Erik Jensen, April 2013