Stanford’s Erik Jensen on the Future of Legal Education in Afghanistan 

What is the legacy of the American invasion of Afghanistan, twenty years on?  For Erik Jensen, faculty director of Stanford Law School’s Rule of Law Program (ROLP), who helped launch the Afghanistan Legal Education Project (ALEP) in 2007 as a student-driven initiative in ROLP, the answer for him is simple: legal education. A 2007 report issued by the United Nations and the Government of Afghanistan found that there were only 236 lawyers in the country licensed to represent clients in court—about one private lawyer for every 128,000 citizens. And, according to Jensen, there was no school in Afghanistan that adequately trained students to be legal practitioners and there was a scarcity of printed materials, from judicial decisions to basic textbooks. The need for ALEP was clear. Today, dozens of Afghan students have graduated from the AUAF law program—lawyers critical to building the legal infrastructure so badly needed in Afghanistan. Here, Jensen discusses ALEP, the state of legal education in Afghanistan today, and the speedy withdrawal of troops from the still struggling country.

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Erik Jensen, Director of the Rule of Law Program at Stanford Law School

Can you talk about ALEP in the early days?

The Afghanistan Legal Education Project started as a scrappy and audacious project to improve legal education in the country through a partnership with the American University of Afghanistan (AUAF). We had very modest funding to test our idea. We hired an Afghan legal scholar to teach the first law course at AUAF in 2008. Afghan students responded very positively and demanded more law classes. Responding to demand, we added classes and eventually turned the law class cluster into a certificate program. On the Stanford side, students were busy writing textbooks as we were rolling out courses. Then in 2013 we received funding from the State Department enabling us to support the creation of a law department and a law degree-granting program at AUAF. The pace and depth of the work on curriculum development expanded significantly.

How is legal education at AUAF different from that at other schools in Afghanistan?

The curriculum is much more practitioner-oriented than is the norm for legal education in the country. Skills development in legal research and writing, oral advocacy and professional ethics are emphasized throughout the four-year degree program. Experiential learning is central to clinical programs, for example, in business development and family law. And moot court competitions are wildly popular among the students, especially moots in international law, international arbitration, international criminal law and international trade law. AUAF students compete very favorably domestically and have done well internationally as well.

As the model that we’ve developed at AUAF has consolidated over the years, we are reaching out to other law schools in the country that are interested in curriculum reform. Some law schools in the country are embracing these reforms. Law students across the country are using our textbooks which are free, translated into Dari and Pashto, and available online with creative commons licensing. In January of 2020, just before lockdown, AUAF hosted a nationwide conference on legal education reform and legal scholarship in the country.  The push for reform is uneven, but it has definitely grown, especially in the last eight years as a new generation of Afghan legal scholars have returned from studies in western countries.

Are there any women participating in the legal program?

The number of women in the AUAF law program has grown exponentially from two or three women in a class in the early days. In the Spring 2021 semester, fifteen law classes were offered, and 171 out of 312 students enrolled were women: nearly 55 percent.  During the many years that I have sat in on law classes at AUAF, the demeanor of female students changed remarkably. Before, the few women in class sat timidly huddled together. Today, women tend to be the best students in class: they dominate the prizes awarded at moot court competitions and actively engage in debate with their male counterparts in the classroom.  Many of our female graduates have found their legal education transformational. Over the years, that goal has been one of the abiding motivations for the entire ALEP team: the Stanford students as well as the executive directors of ALEP.

Has a pipeline to leadership—in the judiciary, in government, in civil life—been established? And are the graduates of the legal program staying in Afghanistan?

AUAF law graduates have a wide spectrum of career opportunities available to them. They have become senior government officials, joined the best private firms in Afghanistan, started companies, started or joined NGOs, and joined international organizations such as the United Nations Assistance Mission in Afghanistan (UNAMA). They have been awarded an incredible number of Fulbright and Chevening scholarships to pursue postgraduate education in the U.S. and in the U.K.. (11% of AUAF students have received Fulbrights.) I’m pleased to say that the vast majority of graduates have stayed in or returned to Afghanistan after studies abroad. That retention record will quickly change, however, if the security environment further deteriorates.

The judiciary is not an optimal career pathway for our Afghan students at this time, but I hope that it will become one if reforms take root in the judiciary.

Can you talk a bit about how the country has changed?

Afghanistan has been exposed to the outside world. Kabul has been radically transformed from a sleepy town to a bustling city. More than 70 percent of Afghans have access to cell phones.  Both maternal and child mortality have been reduced by half. Life expectancy has increased by nine years. The status of women in Afghanistan is still low, but I cannot tell you how much better it is today that it was when I first visited Afghanistan in 2002. Girls’ education has expanded dramatically from almost nil when the Taliban fell to approximately 40 percent of girls attending school pre-pandemic.

Despite these successes, Afghanistan remains a weak state with high levels of corruption. Nonetheless, it is a much more capable state in carrying out its basic functions than it was twenty years ago.

Are you concerned about President Biden’s plan to pull American troops out of Afghanistan by September?

President Biden in a short amount of time has made meaningful progress on an economic, social, and political agenda that should yield positive results. But the abrupt unconditional withdrawal of U.S. troops that the President announced in April will compromise some of the most positive gains made during the last twenty years in girls’ and women’s education, in education more broadly, and in the wonderful glimmers of freedom of expression that we see in a surprisingly lively press and media. There are reasons why politicians as diverse as former Secretaries of State Hillary Clinton and Condoleezza Rice have expressed grave reservations about the unconditional withdrawal.

Read Seven Myths about Afghanistan by Professor Erik Jensen in American Purpose

What is your argument against the withdrawal of American troops?

I understand the fatigue of the American public. Two presidents prior to the current one tried to get out of Afghanistan based on a U.S. political calendar that did not dovetail with the realities on the ground. And I think that those ground realities belie three myths about the war in Afghanistan that are widely shared in the U.S. and used to justify the unconditional withdrawal.

Myth #1: Afghanistan is “America’s Longest War.” The moniker “America’s longest war” stuck, but maybe it shouldn’t have. During a relatively short period, sadly the U.S. military suffered heavy casualties in Afghanistan. The sacrifice of Afghan civilians and military has been incredible, especially in recent years. But it hasn’t been America’s longest war for at least the last five years. Indeed, the U.S. role in the war during that period looks much more like a stabilization program than a war. 66 US soldiers have been killed in action since January 1, 2015. Any loss of life is tragic, but those aren’t war numbers.  Working with Afghan forces, allied forces achieved a low-level equilibrium of stability in the country. As unsatisfying as that equilibrium might be, the situation now is going to get worse.

Myth #2: International terrorist groups have migrated out of Afghanistan to other regions of the world. As partial justification for withdrawal, the claim that international terrorism networks have migrated out of Afghanistan to the Middle East and Africa fails to appreciate the modus operandi of terrorist groups. International terrorism and criminal networks are highly nimble and migrate to safe-havens as they pursue targets of opportunity. These multinational networks already exist in Afghanistan. After 9/11/21 we should expect that both the number of networks and their activities will expand. It is hard to speculate as to whether those activities will reach American shores. However, it is possible, if not probable, that those activities will further destabilize Southwest, South and Central Asia. When you think through scenarios of instability, it becomes quite plausible that those activities could negatively affect American business, diplomatic and security interests.

Myth #3: The Taliban have a unified command structure that is completely separate from ISIS. One should be very skeptical about the claim that clean organizational lines divide ISIS from the Taliban. These networks metastasize and the modalities of collaboration and competition are not clear.  The Taliban, for example, did not claim responsibility for the tragic bombing in April of a Hazara girls’ school in Kabul that killed 85 people, mostly girls. Maybe this was an act of ISIS, maybe the Taliban, or more likely a mash-up of both organizations. Linked to this dynamic is the fact that terrorist organizations learn techniques from each other. For example, the extent to which the Taliban are now engaged in the practice of forced marriage—forcing women and girls in communities they’ve conquered to marry their fighters—suggests that they have learned well from ISIS over the last 20 years.

The “boomerang effect” of foreign intervention is well-known in foreign policy circles. The way in which we are withdrawing from foreign intervention may also create a boomerang effect as it did when we abruptly withdrew from Iraq.

If the Taliban takes over, is liberal education doomed—particularly for women? 

Don’t be fooled by the Taliban’s chief negotiator, silver-tongued Sher Mohammed Abas Stanekzai, who says all the right things about women’s education from his perch in Doha, Qatar. On the ground, the Taliban have shown that they are no more tolerant of girls’ and women’s education than they were two decades ago. I am very worried about the future of girls’ and women’s education and, more broadly, the status of women under a prospective Taliban regime.

What, if anything, makes you hopeful for the future of the people of Afghanistan?

On a political level, I see one unlikely scenario that could create a pathway to a durable peace. That would require the active cooperation and collaboration of disparate civilian political leaders. That sort of unity is unlikely. But, if it happened, it could also inspire better performance by the Afghan forces. Together they could present a formidable force for a tolerant and peaceful future. But many prior conditions would have to align to make that possible. And that is a remote possibility.

Within a narrower frame, the really long game in legal education makes me hopeful. We have constructively contributed to training the next generation of leaders of the country who will either create the circumstances or seize the opportunity when the circumstances are right to assume leadership positions. I have always found hope in the resilience of our Afghan law graduates, students, and faculty.  And I am proud of Stanford’s ALEP students’ steadfast commitment to the mission of ALEP.

Listen to The Future of Afghanistan and the Rule of Law with Professor Erik Jensen on the Stanford Legal podcast

Why did you focus on legal education in Afghanistan and other Rule of Law project countries?

When I was a Fulbright scholar teaching in Sri Lankan law schools back in the 1980s I became aware of both the woeful standard of law textbooks across developing countries as well as the dull classroom experience of stilted lectures and rote memorization. The legal textbooks in every country in which we focused on legal education—Afghanistan, Iraq, Rwanda and Bhutan—were really flawed and often outdated, if they existed at all.  The need for engaging textbooks and dynamic classroom experience was manifest. That need matched well with the skills of Stanford Law students. Our students not only have stellar research and writing skills, but they also possess a level of humility and service that enables a real benefit to our in-country collaborators.

Another motivation of mine was to work against the grain of globe-trotting programs across elite universities in the U.S., especially business schools and law schools. Groups of students will visit developing countries, meet with interesting and insightful leaders and experts from those countries, and leave nothing behind. The benefit of those meetings is usually asymmetrical: students may benefit from those meetings, but the leaders and experts who take time out from the busy days to meet, rarely see any benefit. Our legal education projects are very popular in the countries in which we work because we produce substantial work-products that fill acute needs within countries. I’m convinced that even in the face of significant political uncertainty in Afghanistan, the dozen textbooks that Stanford law students will have authored by the end of the next academic year—peer reviewed by Afghan legal scholars—will be a lasting contribution to legal development in Afghanistan.

Erik Jensen is the director of the Rule of Law Program and professor of the practice of law at Stanford Law School, an affiliated core faculty at Stanford’s Center on Democracy, Development and the Rule of Law, and senior advisor for governance and law at The Asia Foundation. Jensen has taught and practiced in the field of law and development for 35 years and has carried out fieldwork in approximately 40 developing countries. He has led or advised research teams on governance and the rule of law at the World Bank, the Asian Development Bank, and the African Development Bank.