In examining the situation in Afghanistan under the Taliban government, it becomes evident that the conventional perspective on the organic growth of law, as described by Savigny, faces significant challenges in this context. Savigny's theory posits that law is an unconscious and organic development, found rather than made, and that it should conform to the popular consciousness.

However, the current circumstances in Afghanistan raise critical questions about the applicability of this theory. The Taliban government's imposition of restrictions on girls' education, women's empowerment, and the dismantling of key institutions such as the human rights commission and women's ministry reflects a divergence from the principles of universal law. In this case, it seems that the law being implemented is not a product of the general consciousness of the Afghan people but rather a conscious decision by the Taliban leadership to curtail certain freedoms and rights.

The prevailing legal landscape in Afghanistan, under the influence of the Taliban, challenges the notion that law naturally evolves in harmony with the collective consciousness of the people. Instead, it appears that the legal framework is being shaped by the specific ideologies and policies of the ruling authority. In such a scenario, the traditional role of lawyers and jurists as representatives of the popular consciousness and shapers of the law comes into question.

The suppression of dissent and the imposition of restrictions by the Taliban may limit the effectiveness of legal professionals in reflecting the true sentiments of the Afghan people.[1] The theory that law grows organically and is shaped by the common consciousness is perhaps outdated in the face of authoritarian regimes or situations where legal developments are driven by ideologies that do not align with the broader population.

In the context of Afghanistan, it raises concerns about the legitimacy and true representativeness of the legal system under the Taliban rule. Indeed, Savigny's theory emphasized that law is deeply rooted in the general consciousness of the people, representing their spirit and evolving from historical culture and traditions.[2]

Volkgeist, or the general consciousness, was considered by Savigny as a crucial element in the creation and development of law. According to him, any law formulated without due consideration for the historical background and traditions of a community is likely to result in confusion rather than solving problems. For Savigny, law was not a lifeless, artificial, or mechanical construct, but rather an organic product arising from the collective spirit of the people.

However, when examining the current legal landscape in Afghanistan under the Taliban government, it becomes apparent that the legal measures imposed, such as restrictions on education and human rights, do not align with the general consciousness of the Afghan people. Instead, these decisions seem to be deliberate choices made by the ruling authority, challenging the core principles of Savigny's theory.

In the face of such divergence between legal developments and the general consciousness of the people, questions arise about the applicability of Savigny's theory in contemporary circumstances. The theory's emphasis on the organic growth of law from the spirit of the people appears to face challenges when confronted with authoritarian regimes that impose laws contrary to the will of the broader population.

The situation in Afghanistan underscores the complexity of legal development in contexts where ruling authorities may prioritize their own ideologies over the collective consciousness of the people. This raises important considerations about the role of law, legal professionals, and the adaptability of legal theories in addressing the dynamics of governance and societal values in the present day.

Law Develops Like Language
Savigny's theory emphasizes the national character of law and its development in conjunction with the growth and identity of a society. According to Savigny, law is intricately tied to language, customs, and government, forming a cohesive whole based on common faiths, beliefs, and convictions.[3] The strength of the law, in this view, derives from the society itself, and as the nation loses its nationality, the law diminishes.

In essence, law, language, customs, and government are inseparable from the people who follow them. However, when examining the present situation in Afghanistan, it appears that the development of law is not in accordance with the conscious will of the general public, as Savigny's theory suggests. Instead, it seems to be growing under the command of a sovereign authority, the Taliban, supported by sanctions in the form of punishments and even violence.

The legitimacy of the sovereign, in this case, the Taliban leadership, becomes a crucial point of consideration. Savigny's theory presupposes that law is an expression of the common faiths and beliefs of the people, indicating a sense of collective legitimacy. In the context of Afghanistan, the legitimacy of the Taliban as a sovereign authority might be a matter of contention.

Legitimacy can be evaluated based on factors such as popular support, adherence to constitutional norms, and international recognition. If the Taliban's authority is established through force rather than the genuine consent of the governed, questions may arise regarding the legitimacy of their rule. The imposition of laws through coercion and sanctions, as opposed to reflecting the collective will of the people, challenges the alignment of the legal system with Savigny's theory.

Early Development of Law is Spontaneous;
Indeed, Savigny's theory provides a framework for understanding the natural progression of law in a society. According to Savigny, in the early stages of societal development, law evolves spontaneously based on the principle of internal necessity. As a society advances, different aspects of national activities, initially developing cohesively, start to diverge into specialized branches. These branches are then taken up by specialists, such as jurists, linguists, and scientists, who contribute to the richness, completeness, and technicality of these subjects.

Law, in Savigny's view, has a dual role. On one hand, it serves as a regulator of general national life, constituting the political element of law. On the other hand, it becomes a distinct discipline for study, forming the juristic element. Both elements play significant roles in the continued development of law within a society. Savigny often pointed to the history of Roman law as a prime example of these processes.

Contrary to this organic development, the emergence of the Taliban government appears to be driven more by force than by the general consciousness of the people. The Taliban's ascent to power involved military strategies, coercion, and conflict, rather than a natural evolution based on internal necessity and collective will.

In this context, the Taliban government's development contrasts sharply with Savigny's theory, as it lacks the organic and internally driven progression that he envisioned. The imposition of laws through force raises questions about the legitimacy, representative ness, and compatibility of the legal system under the Taliban with the principles outlined by Savigny.

The divergence between Savigny's theoretical framework and the development of the Taliban government highlights the complexities and challenges in applying legal theories to diverse political situations.

Law is a Continuous and Unbreakable Process
Savigny's perspective on the growth of law emphasizes its continuity and unbroken development, rooted in common cultural traditions and beliefs. He views law as an organic product of historical processes, suggesting that the historical context should be the subject of study for jurists seeking to understand the evolution of legal systems. Savigny expresses caution about codifying law too early in the developmental stage, as he believes it may impede the natural and continuous growth of the legal system.

The reference to the years 1996 to 2001 suggests a specific period during which a particular group or regime in a region may have established or modified laws. If, during this time frame, there were significant changes or disruptions in the legal system, it could be seen as a departure from Savigny's idea of continuous and organic legal development.

The mention of a new regime in 2001 indicates a shift in governance, which may have influenced the legal system. If this change involved a substantial alteration or interruption in the legal framework, it could be seen as a moment when the law did not continue to grow organically but experienced a break in its development.[4]

In the context of Savigny's theory, the interruption or cessation of law's growth might be attributed to external factors, such as political changes or interventions. Savigny's caution against premature codification aligns with the idea that a legal system should fully develop and stabilize before codification takes place. If the change in regime in 2001 led to a codification of law or a significant departure from existing legal traditions, it could be considered a deviation from Savigny's preferred approach to legal development.

It's important to note that the specifics of the legal changes during the mentioned period would provide a clearer understanding of how the principles of Savigny's theory were applied or deviated from in that particular context.

Savigny's Administration for Roman Law
In his role as a legal scholar in Germany, Savigny, while emphasizing the significance of Volksgeist, the spirit of the people, as the foundation of law, displayed a pragmatic approach. Despite his staunch advocacy for national legal traditions, Savigny justified the incorporation of Roman Law during a period when German law had been influenced by Roman legal principles.

He located the essence of the people's spirit, Volksgesit, within the Romanized German customary law. This pragmatic stance allowed Savigny to acknowledge and incorporate legal elements that had already permeated the existing legal landscape, showcasing his recognition of the historical and cultural interplay in the evolution of legal systems.

However, your observation raises concerns about the practicality of the fourth element of Savigny's theory in the context of Afghanistan. Savigny's elements include the essence of law rooted in the people's cultural traditions, the continuous growth of law based on historical processes, caution against premature codification, and the acknowledgment of the people's spirit in legal traditions influenced by foreign principles.

If the integration of foreign legal traditions diffused into the local legal system, as seen in the Romanized German customary law, is considered impractical in Afghanistan, it suggests potential challenges or complexities in applying Savigny's theory to this specific cultural and historical setting.

The unique circumstances in Afghanistan, characterized by diverse cultural and legal influences, may require nuanced considerations that differ from Savigny's experiences in Germany.

Conclusion
In conclusion, criticisms of Savigny's legal theory highlight its inconsistencies and limitations in diverse contexts, especially when faced with authoritarian regimes like the Taliban in Afghanistan. The theory's emphasis on organic law growth clashes with the deliberate imposition of laws, questioning its relevance.

The coercive nature of the Taliban's rule challenges Savigny's idea of law developing from the collective spirit of the people, raising doubts about legitimacy. The theory's applicability is further questioned by the force-driven ascent of the Taliban, challenging Savigny's view of spontaneous legal development.

Disruptions in Afghanistan challenge the notion of law as a continuous process, questioning Savigny's caution against premature codification. The pragmatic integration of Roman law in Germany doesn't necessarily apply to Afghanistan's unique circumstances, highlighting the need for a more adaptable approach to legal theories in complex socio-political settings.

End Notes:

1. What is the Taliban? (no date) Council on Foreign Relations. Available at: https://www.cfr.org/backgrounder/taliban-afghanistan (Accessed: 20 January 2024).
2. Father of Historical School of Jurisprudence - who and why? (no date) Testbook. Available at: https://testbook.com/articles/father-of-historical-school-of-jurisprudence (Accessed: 20 January 2024).
3. Beiser, F.C. (2011) Savigny and the Historical School of Law, OUP Academic. Available at: https://academic.oup.com/book/9329/chapter-abstract/ (Accessed: 20 January 2024).
4. The Unrecognized Legacy: Savigny's Influence on German Jurisprudence after 1900. Available at: https://www.jstor.org/ (Accessed: 20 January 2024).