Disputing amidst Uncertainty Procedures of dispute management in ‘post-war’ times – disputing parties’ accounts, Bamyan/Afghanistan 2009

The present research concerns the realisation of procedures of disputing under the special circumstances of so-called ‘post-war’ times, accounting for and analysing disputing parties’ assessments and practices. These special circumstances were caused by recurrent large shifts in power relations and immense changes in the social order during the last decades of civil and regional wars and regime changes. In consequence, these changes led to an immense diversification on the socio-cultural, institutional, and normative level. This diversification puts the order of disputing up for fundamental negotiation, provides for a highly pluralistic and unsettled legal field, and makes the order of disputing subject to a multitude of large- and small-scale legal and political interventions. All this is typical for post-war times.

The research contributes to the understanding of this setting by analysing how disputing parties themselves assess these times, the consequences these emic assessments have on their dispute management and, through that, on the realisation of procedures of disputing. The project follows disputing parties through their dispute management and analyses their decision-making processes in regards to questions crucial for the realisation of procedures of disputing. These questions include: who is regarded to be a party, how is the decision made to blame and by that to establish a disputing relationship, what defines the aims of the disputing process, how are third parties dealt with, and finally how are the results and at least temporary endings of disputing processes dealt with.
These detailed analyses not only confirm the general assessment of normative plurality and an unsettled legal order. They also point to the problem of uncertainties parties are confronted with in their decision-making: Uncertainty about the other parties’ means, interests, and normative convictions, about institutional agendas and practices, as well as the social relationships that disputing relationships are based on – in short, uncertainty about information crucial for decision-making in disputing. However, the analyses also show the impact that uncertainty about the future has, which by most is expected to be the continuation of the past experience of recurrent fundamental socio-political change and even war. This expectation of fundamental future changes in the socio-political organisation has tremendous effects on decision-making in disputing mechanisms: It closes the time-frame disputing strategies are based on in a manner not envisaged by the available normative orders and does not allow for sustainable solutions based on the parties’ interests. It further effectively inhibits the renegotiation of norms of legitimacy that a reliable order of disputing would require, even for those who engage in a negotiation of the future in normative terms. Disputing mechanisms such as retaliation, mediation, and punishment thereby turn into means of negotiating power rather than justice and are defined by those parties in power rather than those who might be legitimised on normative grounds. This is not only perceived as a continuation of the officially past war times, it also delegitimizes the current enterprise of state-building and inhibits peace-building in socio-legal regards, despite Bamyan being politically peaceful in 2009.

Analysing disputing parties’ decision-making processes thereby not only contributes to an understanding of the production of procedures and mechanisms of disputing and the workings of a legal order in times of fundamental change. It moreover emphasises the importance of how actors interpret these circumstances based on their experiences with the past and expectations of the future socio-political order in general and position themselves towards it.