This part will deal with the detailed analysis of the Russian legal system and also a critical analysis of the textual and contextual part of laws of the Islamic Republic of Afghanistan
According to the Constitution, Afghanistan is an Islamic Republic, independent, unitary and indivisible state. It aims at consolidating national unity, safeguarding independence, national sovereignty, and territorial integrity of the country, for establishing a government based on people's will and democracy. Also for the first time, any constitution of this state has recognized and given place to human rights and fundamental rights. The government comprises of a Council of Ministers and a National Assembly. The President is the head of the state and the Commander-in-chief of the army. The country has been through many political upheavals and the current constitution was adopted post withdrawal of American NATO forces and an executive president was elected. The National Assembly is composed of the House of People(Woleshi Jirga) and the House of Elders (Meshrana Jirga). The first legislature was elected in 2005 and then re-elected in 2010. The current parliamentary members mostly comprise of former mujahedeen, Islamic fundamentalists, reformists, communists and several Taliban members.
The current Afghanistan government system consists of three branches of power- executive, legislature and judiciary overseen by a system of checks and balances.
The Afghanistan legal system is mostly a mixture of civil, customary and Islamic law. In contrast to most nation states where State power has removed all other contenders for legal authority, the popularity of customary and Islamic law has not yet waned. The constitution describes Islam as its acre and state religion. A system of civil law is described but no law may contradict the beliefs and provisions of Islam.
Civil law: Civil law refers to the legal code and procedures setup by the government to address the grievances of people. These legal procedures may not include Shari ‘a or customary laws and work strictly on the need to promote common welfare. It mainly draws its power from its claim to be an exclusive source of legal authority that is enforceable on all people throughout the country. Civil law has only recently taken up any form or shape in the Afghan context, as the civil law was for the past many years, merely an extension of the Islamic law but the state always asserted the priority of its own laws over the application of traditional Shari ‘a law where those two conflicted. Yet, even at the height of its power the central government was unable to propagandize its writ throughout the nation. During 1978, the Soviet Rule when religious symbolism was removed from government to create a secular regime such a huge uproar was raised that the PPPDA Party had no option but to revert back to the old formula.
The Constitution, though gives a way out of this conflict where in case of a provision in the law, the Islamic law would not be applicable but in case there is no provision, the court would announce a verdict in accordance with the fundamental principles of Hanafi jurisprudence of Islamic Shari ‘a to secure justice in the best possible way.
These specifications clearly demonstrate the fact that Islamic law and customary law still affect the civil procedures in Afghanistan.
Executive Branch of government:
President:
The President of Afghanistan as dictated by the Constitution is the head of the state and the commander-in-chief of the military forces. Aided by a Vice-President, the President is responsible for the appointing ministers, Attorney General. He is responsible for supervising the implementation of the constitution. He convenes the Loya Jirga(Grand Assembly) and development of policies and laws governing the country. He also endorses law as well as judicial offices.
The Ministries:
The President and the various Ministries form what the Constitution calls “The Government.” Under the Constitution, the Government is charged “executing” the provisions of the Constitution. The Ministry of Justice, Ministry of Finance, the Ministry of Water, and the Ministry of Education are among Afghanistan’s twenty five ministries. The ministries are charged with carrying out laws passed by the National Assembly, and drafting regulations. An important ministry is the Ministry of Justice. is primarily responsible for upholding the rule of law. It is also responsible for much of the government’s judicial affairs and has a broad mandate that includes drafting, publishing, and distributing legislative documents, promoting legal awareness, protecting state properties through the court system, and managing the prisons, detention centers, and juvenile rehabilitation centers throughout the country. One of the most important functions performed by the Tannin division . Specifically, the Taqnin division drafts laws to be considered and passed by the National Assembly. Before a law may be considered by the National Assembly, the Taqnin division reviews the proposed law to make sure it is in accordance with the principles of both the
Constitution and the principles of Islamic law. This function is fundamental to lawmaking
Because it ensures the laws considered by the National Assembly have been thoroughly
Researched and determined to be consistent with Afghanistan’s system of government.
Legislative branch of government:
The National Assembly is the legislative branch of Afghanistan’s government and
According to the Constitution, is “the manifestation of the will of [the] people and represents the whole nation.”
Generally, the National Assembly is charged with passing, modifying,
And abrogating laws, and with approving the government budget. Moreover, statutory law must
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Be accepted by both houses and signed by the President before it can enter into force.
Specifically, the National Assembly is divided into two houses, the Woleshi Jirga or the House of
People and the Meshrana Jirga, the House of Elders.
The Woleshi Jirga, regarded as the lower house of the National Assembly, is the chamber that bears the greater burden of law making in the country and was styled after the British House of Commons. The Woleshi Jirga is responsible for making and ratifying laws and approving the actions of the President including, but not limited to, approving various appointments to Ministries and the Supreme Court. It consists of 249 members who are directly elected. Members come from each district and serve for five years.
The Meshrana Jirga, which is regarded as the upper house of the National Assembly,
Generally plays a more advisory role in government, but has particular say in approving various laws and in budgetary matters.
The Meshrana Jirga consists of 102 indirectly-elected members who possess “staggered” terms of office and who are elected by different bodies. Specifically, one-third of the members are selected by the President for a term of five years. They mostly act as advisories but their approval is required to pass a finance budget.
The Loya Jirga:
The Loya Jirga or “Grand Assembly” is, according to the Constitution, “the highest
Manifestation of the people of Afghanistan. ” Unlike the other branches of
Government, the Loya Jirga is not a standing body, but only acts when convened by itself or by the President. Specifically, the Loya Jirga may be convened to amend to the Constitution, and to decide matters related to “independence, national sovereignty, territorial integrity and the supreme interests of the country.” It is also charged with removing the President while in office and dealing with extending a state of emergency.
The Loya Jirga is composed of all members of the National Assembly and the
Chairpersons of the provincial and district councils. The President, Supreme Court Justices and Ministers may participate in Loya Jirga sessions, but without the right to vote. . The Loya Jirga has very specific powers. It may amend the Constitution, make decisions on the territorial integrity and independence of the country, and prosecute the president.
Judicial Branch
The prim ary function of the judiciary is to adjudicate legal disputes. The judiciary is an independent organ of the state. Specifically, the Supreme Court is the highest judicial organ in Afghanistan and charged with deciding the legal matters that come before it. Beneath the Supreme Court, are the Courts of Appeals and the Primary Courts? The Supreme Court is charged with reviewing all statutory laws, legislative decree
And international treaties and agreements for their compliance with the Constitution. The inclusion of judicial review was an innovation in the 2004 Constitution since it had been included in any prior constitution in Afghanistan. The Court is composed of the Chief Justice and eight other justices. Each of the Justices is appointed by the President for a term of ten years and must gain the consent of the Woleshi Jirga. Supreme Court can also propose laws related to judicial affairs in the National Assembly and disciplining judges. Before a case may reach the Supreme Court, it must be brought before the Primary Court in the district where the case originated. There are both Primary Courts with general jurisdiction, called the Central Primary Courts and Primary Courts with specialized jurisdiction, specifically:
Central Provincial Primary Court, Juveniles Court, Commercial Primary Court, District Primary Court, and Family Primary Court.
After a panel of three judges on the Primary Court decides the case, the losing party may appeal the decision to the Court of Appeals of the province. Some decisions of the Primary Courts, however, are final and cannot be appealed. The following cases are considered final:
1) When both parties agree with the decision
2) When the time for appeal has expired
3) When the disputed property is worth 100,000 Afghanis or less, and
4) When a cash fine of 50,000 Afghanis or less is issued.
CUSTOMARY LAW:
Customary law is the means by which local communities resolve disputes in the absence of (or opposition to) state or religious authority. It is based on a common cultural and ethical code that generates binding rules on its members. Communities use this code to resolve disputes, evaluate actions for praise or blame, and to impose sanctions against violators of local norms. While systems of customary law are found universally throughout rural Afghanistan, their specifics vary widely and often idiosyncratically. In addition, far from being timeless and unchanging, they are subject to a great deal of manipulation and internal contest. The most elaborate of these systems is the Pashtunwali, the code of conduct for Pashtuns. However, it is an oral tradition that
Consists of general principles and practices (tsali) that are applied to specific cases. makers. Both the system’s strength and weakness lies in its reliance on mediation and
Arbitration to resolve problems. It lacks the power of coercive enforcement. Failures to
Resolve serious problems, particularly those involving threats of bloodshed, therefore often prompt state intervention.
In Afghanistan both types of systems can be found within a single society. The urban areas of the country and the irrigated agricultural plains are under the control of formal governments and their institutions. The inhabitants of economically and geographically peripheral areas in the mountains, deserts, and steppes historically remained beyond the bounds of state control and therefore ran their own affairs. It is their very lack of wealth and marginal locations make these areas difficult for the Afghan state to administer, which is why these areas still follow customary laws more than the legal codes.
The Pashtunwali:
Afghanistan’s Pashtuns, about forty per cent of the country’s population, historically inhabit the area south of the Hindu Kush and number between five and seven million people, although a number of communities were also resettled (or deported) north of the
Hindu Kush Mountains by governments in Kabul. In addition there are a larger number of ethnic Pashtuns in Pakistan’s Northwest Frontier Province and Baluchistan who were separated from those in Afghanistan by the imposition the so-called "Durand Line" that divided the region between British India and Afghanistan in the late 19th century. The
Pashtuns are tribally organized, all claiming patrilineal descent from a common ancestor but they are divided into a large number of separate clans and lineages. The largest division among Pashtuns in Afghanistan is between the Ghilzai who straddle the Pakistan border and the Durrani who are settled between Kandahar and Herat.
In rural areas, however, there is such melding of their tribal law with
Islamic religious law that the two are often viewed as inseparable and mutually supportive. Local charismatic religious leaders, known as pirs, played important roles in politics historically because they and their disciples crossed tribal lines and could act as counterweights to the landowning tribal khans who tended to dominate Pashtun clans and lineages.
This is a code of conduct that stresses personal autonomy and equality of political rights in a world of equals. Thus it is more than a system of customary laws, it is a way of life that stresses honor above all else, including the acquisition of money or property. It is a code that is practically impossible to fulfill in a class-structured society or in areas where governments prohibit such institutions as blood feuds. It is therefore the people who inhabit the most marginal lands that are poor and beyond government control who see themselves as the only true Pashtuns because only they can maintain the strict standards of autonomy demanded by the Pashtunwali. In richer rural areas, such as the irrigated plains around Peshawar or Kandahar, this less possible because leadership of local lineages came to be permanently dominated by hereditary landlords who reduced their fellow tribesmen to the status of clients. Here it was the landowning elite that tended to display the values of the Pashtunwali because only they had enough autonomy to meet its standards of behavior. In Swat, Pakistan, for example, Pashtun landlords created political factions composed of clients in order to compete with other powerful landlords, but it was clear that the Khans were politically and economically superior to these clients. It is for this reason that examples of customary law as a living tradition are found mainly in the marginal areas of rural Afghanistan even though the ethos of the Pashtunwali is common to all rural Pashtuns. Thus the Pashtun tribes that have remained in the hills and deserts continue draw a sharp distinction between themselves and their tax-free way, blood feuding, way of life (nang) and those Pashtuns who live under state control (qalang). The hill tribes assert that it is only they who follow the proper Pashtun way because their cousins on the plains and in the cities have been stripped of any true autonomy and are forced to obey state regulations.
The Process of Resolving Disputes:
In the Afghan case among Pashtuns it is the Pashtunwali that is the source of abstract principles that have been outlined above. Rules as generating behavior embodies the notion of “doing Pashto,” that is enacting their cultural values in the real world where they take on specific forms. The more specific set of rules that are derived from and employed in legal cases and dispute resolutions are known as tsali (trail marker) in Pashto. It is the last area that is most concrete because actions taken by individuals (or proposals for action) become subject to public judgement. Although there have been a number of ethnographic studies focusing on Pashtuns in Pakistan, there are relatively few such studies specifically on Pashtuns in Afghanistan.
Since there are no formal judicial institutions to resolve disputes it is first necessary to get the parties involved to agree to mediation or arbitration to resolve them peacefully. In other words the community has no tools of legal adjudication. It cannot command or enforce a settlement against the will of the parties and it does not have the power to fine or imprison them. There are, however, a number of mechanisms for solving disputes that employ experts on tribal law, marakachian, who serve as both finders of fact and offer judgements that the parties themselves can agree will be binding. They operate as a type of jirga, or village assembly, that is the key institution for political decision making for the village as a whole or the kinship groups within it.
A jirga is an open forum for discussion at the village level. Its participating members, most often the older respected men, gather both to make decisions that affect the whole community and set policy. These may be local issues such as repair of the irrigation system, use of common forest or pasture resources, or construction of a mosque. They also handle more serious relations such as the declaration of hostilities against another community or selection of representatives to deal with the government. The more important the issue the large the number of people involved.
The jirga and other similar deliberative institutions put great stress on the nominal equality of the participants. Everyone sits in a circle so that no one takes priority. All members have a right to speak and binding decisions are made by common consensus rather than voting. This may take considerable time (days, weeks or even months) or fail to come to a conclusion entirely. Individuals or whole factions assert their disagreement by leaving the circle and refusing to participate further. This is the only way to avoid becoming committed to the group’s decision. If the protestors have enough support their action can bring a jirga to a temporary halt as people attempt to convince the dissenters to return by offering them acceptable compromises or putting them under some kind of social pressure. Good oratorical skills and political savvy are essential in such a system.
The most influential people may wait until they see an opportunity to end the discussion satisfactorily by making a proposal that incorporates earlier discussions and objections.
Dispute resolutions take place in similar but smaller jirga forums in which the participants include the litigants and the judges they have chosen to handle the case.
There are two types: maraka and tukhum. The maraka is employed in simple case where the disputes were generated by minor injuries or small amounts of money or land. If the two disputing parties are members of the same lineage and have no other issues that divide them, then they simply invite two local elders to investigate the case and propose a resolution. In cases where the disputants are more distantly related or when the problem is more complex then as many as ten elders might be invited to be judges, marakachian.
These marakachian investigate the facts themselves independently, question the parties and then propose a resolution of the problem. If they feel they are unable to resolve the problem, or one of the parties declares their conclusions bent (kazha) or invalid, an appeals level maraka is held. The structure and process is the same as the first but the number of number elders serving as marakachian is enlarged to bring in a wider range of people. As an alternative to a second maraka, the objecting party can demand that that the judges take an oath before God that their verdict was honest before he agrees to accept their decision, although he must pay each a substantial fee for the same.
If the disputants refuse to accept the decision of the larger maraka, then they can demand the formation of a tukhum, a tribal assembly in which representatives of other lineages and even other Pashtun clans are called in. This size of this assembly is determined by doubling the number of original judges at the first maraka and then doubling that figure. So if a first level maraka that began simply with two judges, the tukhum would have eight marakachian. These judges represent clans and lineages that come from a wide region. While the tukhum is the maximal level of appeal, as with all Pashtun jirgas it does not have the authority to impose a solution. However, through a system of guarantees and obligations of hospitality the cost of such an assembly to the litigants can be made so high that there is strong pressure to accept their conclusions. While very important disputes involving blood feud or large amounts of land or money might go immediately to a second level maraka or tukhum, even initially minor or silly disputes can evolve into major problems. Problems that began as disputes between two families can become problems between their respective lineages in which the desire to win at all costs makes settlement ever more difficult.
Islamic religious law :
Shari ‘an in Afghanistan was implemented by trained religious judges (qazis) following the Hanafi legal tradition. They were part of a larger class of professional clerics (Ulema) who issued opinions (fatwa) on religious issues. They saw themselves as protectors of a divinely inspired tradition in which religion and government were inextricably melded. As opposed to the highly localized systems of customary law, sharpie was believed to be universally applicable to all times and places. Based on their training in a literate and urban tradition of orthodox Islam, the Ulema held rural customary law systems in contempt, particularly when they strayed from classic Islamic practices. The Ulema often used their influence to demand the replacement of customary law practices with more standard sharpie interpretations, which of course then demanded their own services to resolve disputes. Until the formation of the modern Afghan state in the late 19th century the Ulema was independent in its running of the legal system, providing both the system of laws and the judges to interpret it. This autonomy was progressively restricted by secularizing modernist rulers who demanded that the clergy recognize the state’s right to promulgate laws on its own and control the appointment of judges. The Taliban rejection of this secularized state model marked the high water mark of Islamic clerical influence. After taking control the Afghan state in the late 1990s they abolished the national legal codes on the grounds that the existing Shari’a system already filled all of an Islamic society’s needs.
Throughout the 20th century there was an unresolved battle at the national level between modernists and Islamists over the Afghan legal system that involved replacing an exclusive dependence on shari' a law with statutory law. The most contentious areas of legislation involved changes in family law that attempted to restrict bride price, set minimum age for marriage and that revised the rules for divorce. Conservative clerics often used to these changes, actual and proposed, as a way to mobilize opposition to governments in Kabul. What rural Afghans tended to resist, and what Muslim clerical opponents could effectively play upon, was the imposition of direct control by the Kabul government, whether that took the form of taxation, conscription or the imposition of a new legal code. And in this struggle Shari’a law was not the champion of old rural traditions, but rather an alternative type of direct state control. Indeed, despite the debate between modernists and Islamists, every Afghan constitution before 1980 declared that the Hanafi School of shari’ a law to be the exclusive law of Afghanistan and gave no legal status to customary codes or institutions as part of the judicial system.
Until the 1964 Constitution unified them and gave precedence to statutory law in the combined system, the Afghan legal system had two types of courts: those that administered shari’ a law and those that administered statute law. But even the codes authorized by the 1964 Constitution in the unified system often just restated shari’ a law interpretations in the form that was easier to use by judges. This involved laying out crimes and their penalties clearly by statute, but then declaring that any gaps be covered by Hanafi interpretation of sharia law. Persian translations from standard Egyptian and Ottoman juristic manuals provided the source material for use in sharia law, a translation project that was never completed for the entire code. By making this material available in Persian judges no longer needed be competent in Arabic, an advantage the Islamic clergy previously had over other groups. The code proved to be less a replacement of shari’ a and more a modified version of it tailored to avoid controversy. However, because combining the administrative and sharia courts into a single system affected only at the top two levels of the judiciary even these changes had little impact on rural Afghanistan.
Since the reorganization of the judiciary in the 1960s did not affect the existing structure of the primary courts, the jurisdiction of these courts remained largely unchanged in their capacity as the courts of first instance for ordinary civil litigation and crimes. Thus the primary court remained essentially a court of shari’ a jurisdiction in much the same way they were before the Constitution of 1964. shari’ a law has developed procedures for properly evaluating evidence, deciding cases in a consistent manner, and justifying decisions by reference to Hanafi When used by the state court system, however, there was often a poor fit between its procedures and the needs of illiterate rural Afghans. First, while customary law was part of an oral tradition in which any competent adult could participate, state law courts demanded written documents and citation of specific laws to bring a case. Litigants therefore needed to employ specialists who had formal training in shari’ a law and court procedures. The use shari’ a law by state courts was often at odds with rural traditions, particularly the right to blood revenge, payment of bride price, denying property inheritance to women, and punishment of crimes like adultery. The exclusive use of the Sunni Hanafi tradition of sharia by state courts completely ignored the practices of the country’s Shias who had their own legal system.
In Afghanistan, as in everywhere, there is no definitive idea of what justice is. Only past references and laws to look at.
Interaction between formal and informal institutions of law:
As in most systems marked by legal pluralism, the Afghan legal structure has many points at which the official and unofficial systems have intersected and for various reasons.
Because the Primary Courts were congested, the government turned to mediation. The elders in urban mosques who were already involved in mediating disputes brought to them by private parties were essentially co-opted by the state to help solve its problem of poor access to justice. This is an example of state reliance on traditional unofficial systems. Examples of reliance in the opposite direction, that of the traditional system relying on the state apparatus, arise, as mentioned already, because the jirgas cannot enforce their own decisions in case of disaffection of one or both of the parties with the mediated decision for whatever reason, including allegations of partiality. The parties then go to a state court instead. Enforcement is even more problematic in cases of intertribal or inter-communal disputes. Oral evidence reveals that a jirga directed its ruling to a Primary Court at the district level asking that its decision be sealed and recorded, which provided evidentiary support for the ruling. In most cases, such a formal recording did not make the government's official executive representative responsible for enforcing the ruling of the jirga. The government official could, however, decide to interfere if the representative of the community, like the village chief or clan elder, so demanded. If the government's administrative head in the local district decided to disregard the ruling of the local jirga, he had two options: either to refer the case to the Primary Court or to ask the locals to redouble their efforts to reach a satisfying remedy.
Apart from relying on the state courts for purposes of enforcement, we have some evidence of disputants using the threat of going to the state system to pressure the jirga. In areas where the state court system is within easy reach of local communities, either of the disputing parties can use the accessibility of the state court system as a source of pressure on the local jirga members to find a remedy that is fair, impartial, and agreeable. The credibility of such a move is typically a reflection of the reputation of the local jirga, the trust the local communities have in the jirga members and their rulings, and the esteem in which the local state court is held. More investigation is needed on the extent of this type of forum-shopping pressure. It is also not clear whether it is a form of self-serving manipulation or is instead a reflection of cultural perceptions of how best to achieve impartiality through means other than the common law tradition of adversarial process.
Another point at which the unofficial and official systems have interacted involves bypassing both the state and non-state adjudicatory mechanisms.
This only works if the jirga can convince the parties that they need to come together to mediate, or if the complaining party believes that he or she would have no justifiable or justiciable case or would not meet the evidentiary requirements in an official court setting.
The interaction between the state and non-state adjudicating bodies has been complicated by decades of war and Taliban rule. The local commanders who emerged during the war have enough power to interfere where both the state and non-state institutions interface.
The New 2004 Constitution:
The new Constitution of 2003 retains the reference in the 1964 Constitution to the religion of Islam as the yardstick for the validity of any law along with the Constitution. No law is to be repugnant to the "sacred religion of Islam" and the values of the constitution. By comparison with the 1964
Constitution, the religious test is more broadly formulated. It is not limited to the "principles" of the sacred religion. It has also been extended to the judiciary.
The justices of the Supreme Court have to swear to uphold justice in accordance with the sacred religion of Islam, the Constitution, and the laws. A similar oath had been required after the overthrow of the monarchy in the Republican Constitution of 1976. The courts are bound to apply the state laws, and if no laws exist on the subject, then apply the "provisions" of the Hanafi "jurisprudence” or the Shiite "jurisprudence" and "laws of this Sect”, if both litigants are Shia. But the Hanafi fiqh is to be applied within the Constitution and the concepts of justice.
Unlike the 1964 Constitution, the new Constitution regulates the qualifications of the justices of the Supreme Court. They must have "higher education in law or in Islamic jurisprudence and have sufficient expertise and experience in the judicial system of Afghanistan." As the justices who held office during the prior regimes meet the criteria of expertise and experience, one can only infer that this provision protects them for a while under the new government.
Such protection serves as a counterweight to the executive's political control over the appointment of the Chief Justice. It may not be easy to introduce new blood into the Supreme Court in the immediate future.
The new Constitution raises a new set of issues which need to be researched.
They include the investigation of the relationship between theologies (kalam), spiritualism (e.g. Sufism), and law; as well as the question whether the lawmakers understand their task to be that of incorporating religious "values" into the law as opposed to codifying specific black-letter rules of Shari ‘a. The legislation that the Parliament will enact regarding the laws that the courts will apply will be of crucial importance.
Application of unofficial law in State Courts:
There is some evidence regarding the interaction between the formal state courts and non-state law. The Court of Cassation, the final appellate body for the Primary and Provincial Courts, was especially charged with checking the legality of the lower courts' decisions in terms of the laws and the principles of Islamic law in civil and criminal matters. No mention is made in the statute of any other non-state law such as customary law. Judicial officials, however, in writings in the 1970s give the impression that in practice they made no distinction between customary and Islamic law; perhaps they even blended them. In articles explaining what was meant by customary law, two officials designated the chambers of criminal and civil law as: the Chambers of Customary Criminal and Civil Law (Islamic law). To better understand the implications of this terminology, we would need an in-depth survey of the Law of the Jurisdiction and Organization of the Courts in all its reincarnations, supplemented by research into court archives that survived the wars. We would also need to determine how the appellate judges and the Primary Courts understood customary law in relation to Islamic fiqh and Hanafi principles as opposed to black-letter rules. One could check whether clear distinctions were made between customs compatible with Shari ‘a, customs not compatible with Shari ‘a but necessary for the sake of public peace, and regional variations in the interpretation of the Shari ‘a that reflect localized social and political mechanisms of control as well as freedom of choice among possible Shari ‘a rules.
The concept of “also needs researching. It is a term that appears in practically all of the Afghan constitutions regardless of political color, including the new 2003 Constitution. The constitutions have a frequent source of law - whether it allowed and still allows them to escape the restrictions or irrelevancy of state or non-state laws, or whether it is a rare last resort. The absence of the mention of customary law does not imply in itself a prohibition against using it to do justice. One can well imagine that judges could find justice derived from custom.
