1ST EDITION A N I N T R O D U C T I O N T O T H E P R O P E R T Y L A W O F A F G H A N I S T A N An Introduction to the Property Law of Afghanistan First Edition Published 2015 Afghanistan Legal Education Project (ALEP) at Stanford Law School http://alep.stanford.edu [email protected] Stanford Law School Crown Quadrangle 559 Nathan Abbott Way Stanford, CA 94305-8610 http://law.stanford.edu Protected by Creative Commons License (No Derivative Works) i ALEP – STANFORD LAW SCHOOL Authors Tres Thompson (Student Director, 2014-15) Marta Darby Michelle Hillenbrand Trevor Kempner Mansi Kothari Andrew Lawrence Ryan Nelson Tom Wakefield Editors Tres Thompson (Student Director, 2014-15) Jason Fischbein Tom Wakefield Faculty Director Erik Jensen Rule of Law Program Executive Director Megan Karsh Advisors Rolando Garcia Miron Rohullah Azizi Translation Elite Legal Services, Ltd. AMERICAN UNIVERSITY OF AFGHANISTAN Contributing Faculty Editors Naqib Khpulwak Chair of the Department of Law Taylor Strickling, 2012-13 Hadley Rose, 2013-14 Mehdi Hakimi, 2014- ii PREFACE & ACKNOWLEDGEMENTS Stanford Law School's Afghanistan Legal Education Project (ALEP) began in the fall of 2007 as a student-initiated program dedicated to helping Afghan universities train the next generation of Afghan lawyers. ALEP’s mandate is to research, write, and publish high-quality legal textbooks, and to develop a degree-granting law program at the American University of Afghanistan (AUAF). The AUAF Law Department faculty and Stanford Law School students develop curriculum under the guidance of ALEP’s Faculty Director and Executive Director with significant input from Afghan scholars and practitioners. In addition to An Introduction to the Property Law of Afghanistan (1st Edition), ALEP has published introductory textbooks about: The Law of Afghanistan (3rd Edition); Commercial Law of Afghanistan (2nd Edition); Criminal Law of Afghanistan (2nd Edition); Constitutional Law of Afghanistan (2nd Edition), International Law for Afghanistan (1st Edition); Law of Obligations of Afghanistan (1st Edition), Legal Ethics in Afghanistan (1st Edition). Textbooks addressing Legal Methods: Thinking Like a Lawyer, Legal Methods: Legal Practice, and a new version of Public International Law are forthcoming. Many of the ALEP textbooks have been translated into the native Dari and Pashto languages and are available for free at alep.stanford.edu. Additionally, ALEP has published professional translations of the Afghan Civil Code and Afghan Commercial Code, and business guides authored by Afghan students in the business law clinic. All are available on ALEP’s website. ALEP would like to acknowledge the individuals and institutions that have made the entire project possible. ALEP benefits from generous and dynamic support from the Bureau of International Narcotics and Law Enforcement (INL) at the U.S. Department of State. Current Stanford Law School Dean Elizabeth Magill, former Dean Larry Kramer, and Deborah Zumwalt, General Counsel of Stanford University and member of AUAF’s Board of Trustees, have provided important continuing support to ALEP. ALEP’s partnership has deepened over the last six years with AUAF’s leadership: Dr. Sharif Fayez (Founder), Dr. Mark A. English (Acting President), Dr. Michael Smith (former President), and Dr. Timor Saffary (Chief Academic Officer). As with all ALEP textbooks, the content of An Introduction to the Property Law of Afghanistan (1st Edition) is the product of extensive collaboration. Were it not for the skillful work of Elite Legal Services, Ltd. and Mohammad Fahim Barmaki in creating the first reliable English translation of the Civil Code of Afghanistan, this textbook could not have been written. We thank the ALEP authors: Tres Thompson, Marta Darby, Michelle Hillenbrand, Trevor Kempner, Mansi Kothari, Andrew Lawrence, Ryan Nelson, and Tom Wakefield for their work researching, drafting, and revising the chapters. ALEP Curriculum Advisor, Rohullah Azizi, and former AUAF Prof. Naqib Khpulwak provided substantial guidance and feedback to the students throughout the process. Tres Thompson, Tom Wakefield, and Jason Fischbein worked tirelessly to edit the drafts and get the textbook into final form with assistance from ALEP Program Advisor, Rolando Garcia Miron. Finally, Megan Karsh, Executive Director of the Rule of Law Program, deserves special acknowledgment for the innumerable tasks both large and small that she undertook in shepherding this textbook from inception to completion. ALEP looks forward to continuing the collaboration that made this book possible. Please share your feedback with us on our website, alep.stanford.edu. Erik Jensen, Faculty Director, ALEP Palo Alto, California, December 2015 iii TABLE OF CONTENTS Chapter 1: Property Principles………………………………………………………………. 1 Chapter 2: Legal Framework and Dispute Resolution……………………………………... 18 Chapter 3: Ownership…..…………………………………………………………………….. 36 Chapter 4: Property Transfers……………..………………………………………………… 54 Chapter 5: Property Transfers Without Permission….…………………………………...... 87 Chapter 6: Limitations on Use………………..………………………………………………. 104 Chapter 7: Agriculture and Water Law……………………………...………………………. 141 Chapter 8: Minerals & Hydrocarbons……………………………………...………………… 181 iv CHAPTER 1: PROPERTY PRINCIPLES “There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right to property.” William Blackstone1 At the beginning of this textbook, the authors would like to make two suggestions about how to approach the study of property law. First, property is a subject that affects our lives every day, that we think about often, and about which we have strong opinions. For this reason, you should not think of property law as a purely academic subject. Instead, you should think of property law as a practical subject about which you already have a lot of knowledge. This textbook will formalize and organize your knowledge of property law, but you should use what you already know about the subject as you read the textbook. Second, property is a controversial subject with social and political implications. This textbook addresses what property law is (a legal question). There is another question of what property law should be (a normative question, or question about social values). For instance, there is a legal question about how to acquire ownership of a plot of land, and there is a normative question about how many plots of land a single person should be allowed to acquire. To be clear, the normative question is how to balance the individual right of land ownership with a collective goal of relative equality in land ownership. This question itself makes assumptions that you may disagree with. For instance, you may not believe in an individual right of land ownership. Or, alternatively, you may reject the notion that society needs to strive for relative equality in land ownership. Regardless, the point is that property law is a controversial topic worthy of your careful study. Although the textbook focuses on legal questions, it is important to consider and discuss normative questions too. It will make for good conversation with your classmates, as these normative questions are deeply interesting. As a final note, this introductory chapter introduces property principles. The chapter provides a background of larger ideas about property law that will inform your understanding of the particular topics discussed in later chapters. It answers these questions: What is property? Why do we have property law? What are the theories that serve as the basis of property rights? Finally, the chapter concludes by briefly introducing what will follow in later chapters. 1. PROPERTY PRINCIPLES 1.1 What is property? 1.1.1 Defining Property 1977 Civil Code of the Republic of Afghanistan2 Article 472: Property is a physical object or right that has material value among people.                                                                                                                           1 William Blackstone, Commentaries on the Laws of England, volume II, p. 2. 2 1977 Civil Code of the Republic of Afghanistan, Article 472. 1 Imagine you have just purchased a house that occupies a small plot of land. You now have the right to move into your new house. There are many other rights that you now possess too. For instance, you can allow a neighbor to use a path that goes across your plot of land. Or you can exclude another neighbor from playing football on your plot of land. Maybe you are an excellent cook, and you decide that you would like to have a newer, better kitchen so that you can prepare delicious meals for your family and friends: you can wreck the old kitchen and build a new one. Eventually, you may decide that you would like to move to a house in another neighborhood: you can sell the house to a buyer. All of these actions are examples of rights that follow from ownership of the physical object of the house. Note, however, that these rights are limited, as will be explained later in the textbook.3 This simple example helps us think about how to define property. Property refers to things, like the house. Property also refers to rights of ownership, like the right to exclude the footballing neighbor from your plot of land. Things are physical objects that we can own. Rights are legal protections that follow from ownership of the physical object. One prominent legal dictionary defines property as “[t]he right to possess, use, and enjoy a determinate thing.”4 Note how similar this definition is to the definition in the Civil Code. Note also how both definitions contain both things or physical objects and rights. Some scholars define property only as things5: a house, a bicycle, a watch, et cetera. This is a literal perspective. Other scholars define property only as rights.6 From their perspective, property is a human relation, often arising from conflicts among people. Thus, a man on a deserted island may possess things, like a house, a bicycle, or a watch, but he does not possess property. This is a theoretical perspective. Despite this interesting academic debate, the best definition of property for our purposes contains both things and rights. The debate over the definition of property—i.e., what does and does not constitute property—is evident in Islamic jurisprudence as well. The Hanafi School of Islamic thought confined its definition of property to physical things. It required that for something to constitute property, it “must satisfy two conditions: (i) possibility of physical possession and (ii) having potential beneficial uses.”7 The first condition seems easy to understand. To be property, the thing must be able to be held or in some way stored by people.8 For example, the sky cannot be property because it cannot be possessed. The second condition is a bit more difficult to understand. One way of think about what has a “beneficial use” is to think if the thing has value. If it has value, then the thing must have beneficial uses and would be considered property. Figuring out what has value, however, may be more difficult than you might think. To determine what has value, custom can play a role. Customarily, some things such as a drop of water or a handful of sand are considered to have no value. For this reason, these items would not be considered property under Hanafi Jurisprudence. For this reason, to figure out if some thing would be considered property under the Hanafi School of Islamic thought, you would need to think about whether the item seems to have value and also consult custom. 9                                                                                                                           3 See, e.g., Civil Code, Book 3, Title 1, Chapter 1, Section 3—Restrictions of Ownership. 4 Bryan A. Garner, editor, Black’s Law Dictionary, 9th edition, p. 1335. 5 Laura S. Underkuffler, The Idea of Property: Its Meaning and Power (Oxford University Press, 2003), pp. 11-12. 6 Id. 7 Afghanistan Legal Education Project, Commercial Law (2d ed.), pp. 11-12. 8 See Mohammad Hashim Kamali, The Right to Life, Security, Privacy, and Ownership in Islam, (Turkey: Islamic Texts Society 2008), 259 9 For different definitions of property in Islamic law, see, Muhammad Wohidul Islam, Al-Mal: The Concept of Property in Islamic Legal Thought, Arab Law Quarterly, Vol. 14, No. 4 (1999), pp. 361-368. 2 Can you think of items that might be considered property under the Civil Code but not under the Hanafi School of Islamic thought? While there are many possible answers to this question, one particularly important item that is not considered property under Hanafi jurisprudence is called usufruct. Usufruct is the right to enjoy the fruits of a piece of property.10 For example, suppose you own a house and have an extra room. To put the room to use, you decide to rent the room to a university student who needs a place to stay. He must pay you each month to use the room. This rent payment would be considered usufruct. It is the benefit you get from owning the room.11 Usufruct is not considered property under Hanafi Jurisprudence because your enjoyment of the benefits of your property in the future is not something you can store for future use.12 Think again about renting the apartment to the university student. The rent you will get next month is not something you can hold now. For this reason, this future rent does not qualify as property you own. Now that you have thought about things that might not be considered property under Hanafi Jurisprudence, can you think of items that would be considered property according to the Hanafi School of thought? See the chart below that describes common types of things that are considered property under Hanafi Jurisprudence. What do you think about the Hanafi school of thought’s definition of property? Examples of Common Types of Property According to Hanafi Jurisprudence Movable Property Property that “can be transferred from one place to another”13 Immovable Property Property “which cannot be transferred to another place.” For example, a house.14 Money Cash, coins, and gold.15 Merchandise Goods “other than cash, animals, things estimated by measure and things estimated by weight.”16 Common Articles Things you can find at different markets without any difference in price17 Rare Articles Things you cannot find in a market, or if you can find it, the price is different.18                                                                                                                           10 “Usufruct,” Merriam-Webster, accessed 2/9/14, http://www.merriam-webster.com/dictionary/usufruct 11 Mohammad Hashim Kamali, The Right to Life, Security, Privacy, and Ownership in Islam, (Turkey: Islamic Texts Society 2008), 259. 12 Ibid.;Wael B. Hallaq, Sharīʿa: Theory, Practice, Transformations, (Cambridge UP: Cambridge 2009), 298. 13 Al-Majalla Al Ahkaam Al Adaliyyah (The Ottoman Courts Manual (Hanafi)), Article 128, available at http://legal.pipa.ps/files/server/ENG%20Ottoman%20Majalle%20(Civil%20Law).pdf 14 Ibid at Article 129. 15 Ibid at Article 130. 16 Ibid at Article 131. 17 Ibid at Article 145. 18 Ibid at Article 146. 3 Exercise I Think about the following items: blood, water, and a tribe name. Are they property in Afghanistan? Why or why not? Ask yourself: Are they things? And do rights adhere to those things? Suggested Answer Exercise I Blood is a thing. But it is not a thing over which you can exercise rights. Therefore, blood is not property under the law of Afghanistan. Water is also a thing. And water is a thing over which you can exercise rights. For instance, if you owned a tract of land that had a stream of pristine water running through it, you could likely bottle the water and sell it at the market. Therefore, water is property under the law of Afghanistan. A tribe name is not a thing—that is, it is not a physical object in the way that blood and water clearly are. As will be discussed later in this chapter, the fact that a tribe name is not a thing does not necessarily mean that it is not property. But a tribe name also does not confer any rights. For the purposes of this exercise, then, a tribe name is not property under the law of Afghanistan. 1.1.2 Immovable Property and Movable Property Civil Code19 Article 478: Immovables are those objects that have a fixed base and their transportation, without destruction, is impossible. Objects that are not of this characteristic are deemed as movables. The Civil Code identifies two types of property: immovable property and movable property. In civil law countries like Afghanistan, immovable and movable property are the preferred terms. In common law countries like England, real and personal property are the preferred terms. Immovable and real property are basically the same thing. Movable and personal property are basically the same thing. For the purposes of this book, of course, immovable and movable property will be the preferred terms. We mention real and personal property in case you should encounter these terms in comparative or international law. Now let’s discuss what this basic division in property law means. Immovable property is property that cannot be moved. And if immovable property were to be moved, moving the property would destroy it. The most obvious example of immovable property is land. In addition to land, immovable property includes things attached to land. For instance, a permanent building is immovable property because it is attached to land. Both land and a permanent building would be destroyed if they were moved to another location. The land would have to be dug up, and the permanent building would have to be torn down. Movable property is property that can be moved. In other words, movable property is property that is not attached to land. A book, a spoon, and a jacket are all examples of moveable property. What about a tent, a yurt, or another temporary building? This is a more difficult question. The question is tricky because they are buildings, but they are not permanent buildings as in the example above regarding immovable                                                                                                                           19 Civil Code, Article 478. 4 property. The answer is that these temporary buildings are movable property because they can be moved without being destroyed. For instance, imagine you live in a tent that you have erected on one plot of land. You then decide that you would like to move to another plot of land. You can disassemble the tent on the old plot of land, then reassemble it on the new plot of land. The tent will not be destroyed. For this reason, a tent is an example of movable property. There are some types of immoveable property that can become moveable property. Plants, trees, and grass are all instances of immovable property. Once cut or dug up, however, they are no longer attached to the land and become movable property that can be bought and sold. For example, a tree on your land is immovable property, but if you chop down the tree and cut its branches into logs for firewood, the firewood is movable property that you can sell. In sum, ask yourself the following simple question in order to distinguish between movable and immovable property: Can the property be moved without being destroyed? If yes, it is movable property. If no, it is immovable property. It is important to remember this basic distinction between immovable and movable property as you read the Constitution and the Civil Code. Certain provisions of these laws may not apply to property generally. Instead, certain provisions apply to either immovable property or movable property, but not both. For instance, consider Article 1986 of the Civil Code: “If owner of movable property waives its ownership, it shall become a free property.”20 This provision applies to movable property but not to immovable property. Let’s say you’re an avid cricket player. Sadly, you injure your arm and must quit the sport. You decide to waive your ownership of your cricket bat. You leave it on the street curb for another person to take and use. Can a passerby take the cricket bat without paying for it? Yes, because a cricket bat is movable property. This is precisely the situation envisioned in Article 1986 of the Civil Code. For a contrary instance, consider Article 41 of the Constitution: “Foreign individuals shall not have the right to own immovable property in Afghanistan. Lease of immovable property for the purpose of capital investment shall be permitted in accordance with the provisions of the law. The sale of estates to diplomatic missions of foreign countries as well as international organization’s to which Afghanistan is a member, shall be allowed in accordance with the provisions of the law.”21  This provision  applies to immovable property but not to movable property. Let’s say your friend is from Turkey. He spends a semester studying in Kabul. He decides to get a job in Kabul and move to the city permanently. Can he buy an apartment? No, because (1) your friend is foreign and (2) an apartment is immovable property. Your friend will have to rent an apartment. This is precisely the situation envisioned in Article 41 of the Constitution. But there is nothing to prevent your Turkish friend from owning movable property in Afghanistan. So he could pick up your cricket bat from the street curb! As a final reminder, you should distinguish between movable and immovable property as you read this textbook and the Civil Code.                                                                                                                           20 Civil Code, Article 1986 (emphasis added). 21 Constitution, Article 41 (emphasis added). 5