Islamic law and the Afghan legal system

Melbourne Asia Review

The Taliban took over the Afghan capital Kabul in August 2021 and regained control of the entire country. The first time the Taliban ruled Afghanistan (1996-2001), they were virtually stepping into an absence of a legal and political order. However, this time the Taliban have taken over a two-decade-old political and legal order, the Islamic Republic of Afghanistan. What does the Taliban takeover mean for the country's laws and legal institutions? What does it mean for the legal trajectory of Afghanistan? Building on the ruins that the years of civil war and Taliban rule had left behind, the Republic was founded on a constitution (2004) that, by many standards, could be considered the most progressive constitution in the region. Within this progressive constitutional framework, two elected presidents and four elected parliaments enacted numerous laws. The Supreme Court, the country's top court, was reestablished as the head of a formally independent judiciary. The Attorney General's office was reestablished to formally introduce an element of due process in the criminal justice system. Law and political science faculties and Shari'ah faculties, two schools that would supply the justice sector personnel, started graduating people who would staff the growing justice sector. The surplus of law and Shari'ah graduates, the flow of aid to the formal justice sector, and the increase in demand (and need) for formal legal services led to the emergence of a nascent private legal market where a formally independent bar association licensed and regulated the private defence attorneys.

ODI Briefing Note, 2020

• Taliban courts are becoming increasingly widespread across Afghanistan. They were seen by those interviewed as more accessible and easier to navigate than state courts, as well as quicker, fairer and less corrupt. However, those living in Taliban areas do not have much choice but to pursue their claims through Taliban courts. • The Taliban have used their courts not only to delegitimise the state and erode state justice provision, but also to disempower and replace customary dispute resolution. This has undoubtedly helped them to consolidate control over territory and compel civilians to follow their rules. • Understanding this system is becoming increasingly important, particularly for the prospect of peace talks and any intra-Afghan negotiations that may commence. It has implications for the future of justice in Afghanistan as well as the fate of legal norms and rights embodied in the current Afghan constitution. • Questions remain, including around how women, government supporters and ethnic minorities experience Taliban justice. Further field research is also needed in other areas of the country, on criminal and capital cases, and on Taliban official policies and judicial norms. This will only become more relevant as intra-Afghan negotiations progress.

Sharia Incorporated, 2010

Legal pluralism is the hallmark of Afghan legal reality. Afghan law is a combination of Islamic law, state legislation, and local customary law. This chapter traces the origins of that plurality and shows that the lack of clarity regarding the relationship between these different sources of law and the absence of guidelines as how to resolve conflicts between them is still causing many problems in Afghanistan today. Despite the existence of official law, i.e. the formal legal system established under the provisions of a constitution, the socio-legal reality is not reflected by it, and the law in the books does not represent the norms that actually govern the lives of the majority of the population. For ordinary people and villagers, who form the majority of the populace, tribal/customary and Islamic law are more significant and actually better known than any state legislation. As a result, in Afghanistan it is not the implications of sharia or sharia-based law that, at least for the moment, prevents the application and implementation of international legal and human rights standards, but the lack of a system by which the rule of law may be established so that the legal system is capablepractically, socially, politicallyof guaranteeing and enforcing laws effectively. Although the Government of Afghanistan is committed to carrying out its duties imposed not only by Afghanistan's domestic laws but also by the country's international obligations, the greatest challenge to action is the lack of security and the fragile peace balance in the country.

Central Asian Affairs, 2014

The Taliban established their own judicial system in Afghanistan as both an instrument of population control and as a means to project themselves as an effective parallel government. Despite the heavy reliance on coercion, the Taliban’s method of dealing with common criminality and resolving disputes was often welcome, though the weak appeal system and the rapidity of the trials was sometimes criticized. A more structured approach to coercion, featuring rules, regulation and supervision over the military, allows less use of violence and promises increased predictability for the population, making active resistance less of a necessity. In the long run, the establishment of credible judiciary institutions reshapes the social environment and creates vested interests in favor of Taliban domination.

8AM Media, also known as Hasht-e-Subh Daily, 2024

The new Law on Propagation of Virtue and Prevention of Vice, introduced two days ago by the Taliban Ministry of Justice, has drawn significant global attention and widespread criticism. This law, comprising a preamble, four chapters, and 35 articles, imposes severe restrictions on individual lives, particularly targeting women. In the context of Afghanistan’s current dire state, marked by extreme poverty and hardship, the Taliban, as always, show no regard for the real needs of society, focusing instead on strengthening their absolute rule and intensifying the suffering of the people, especially women.

Islam and civilisational renewal, 2020

This article is composed of three main sections. It begins with a short description of the meaning of shariah and fiqh in the context of Afghanistan, and a review of the historical path of shariah since the arrival of Islam until the era of constitutionalism in Afghanistan. The second section then focuses on the role of shariah in the judiciary after the first constitution was adopted in 1923 until the current constitution. This section reviews the role of shariah within a centralised judiciary and codified law system. The third and final section proceeds to explain the position of shariah in the current judicial system since the 2004 Constitution. It describes how the 2004 Constitution opened a space for the implementation of shariah. It also sheds light on the qualification and appointment of judges before providing a conclusion and policy recommendations.

Journal of Afghan Legal Studies, 2017

The Afghan Constitution of 2004 has imposed two sets of limits on rule making in the country. On the one hand, the rules made ought to meet the Islamic limits and, on the other hand, they have to satisfy the human rights and democracy limits as stated in international law. Firstly, as for the Islamic limits, it will be shown that "non-violation", rather than compliance, is meant. Secondly, the content and scope of the Islamic limits are dealt with. Thirdly, it is argued that no official religion is designated, though two Muslim jurisprudential schools are introduced for relevant cases. Fourthly, two pertinent authorities are introduced and discussed. That is, the Supreme Court and the Independent Commission for the supervision of implementation of the Constitution are established in order to undertake the duties of monitoring, respectively, "compliance" with and "implementation" of constitutional provisions, while a third issue of "interpretation" of the provisions has been remained ambiguous and, hence, creating controversies. Fifthly, it shall be shown that certain requirements of the second set of limits, in particular that of the rule of law, is the main pillar of the whole constitutional system. Thus, it cannot be readily undermined. Sixthly, the resulting conundrum of satisfying both sets of limits will be introduced. Finally, an attempt will be made to find a way out of the conundrum. Keywords: Afghan Constitution of 2004, Constitutional Background, Non-Violation of Islamic Law, Human Rights and Democracy

Journal of Comparative Law, 2024

The article examines the Afghan constitutional draftcommissioned in 1998 by Mullah Omar to a commission of experts, in the days of the first Islamic Emirate led by the Taliban movement in Afghanistan. The draft, even if it was never adopted and although not very much explored in literature, nevertheless constitutes an interesting model to analyze in order to understand the evolution of Afghan law.

Addaiyan Journal of Arts, Humanities and Social Sciences , 2025

The issue of modern legislation in Afghanistan is related to the type of judicial system and the provision of justice in the country. Some attribute the pride of Afghanistan's modern laws to European countries, especially France, believing that these laws have been imported from those distant and foreign regions and integrated into the legal system of Afghanistan. In contrast, a significant number of others, upon deeper examination of the aforementioned laws, think that the most important laws of Afghanistan are derived from the jurisprudential rulings of Islamic Shariah. They have been arranged and codified in the form of modern laws according to the necessities and exigencies of the time. For instance, prior to Afghanistan, the Ottoman Caliphate undertook similar efforts and compiled jurisprudential rulings of Islamic Shariah in the form of modern laws in a book titled "Majallat al-Ahkam al-Adliyya." Therefore, the important modern laws of Afghanistan are fundamentally based on those jurisprudential rulings that have been arranged in the form of modern laws due to specific causes and factors, more details on this will be mentioned in later discussions.This discussion is significant because there have long been two perspectives (positive and negative or right and left) regarding the laws governing the judicial system in the country, which need to be explained in a documented manner. The aim of this writing is to articulate the position of Islamic jurisprudence in the country's judicial system. This work employs a qualitative methodology by analyzing credible ancient and modern sources available in this field. In conclusion, it has been determined that the effective and governing textual and substantive provisions in Afghanistan's judicial, legal, and legislative system are fundamentally based on those jurisprudential rulings; however, unfortunately, since the Amanullah Khan era, efforts have been made to give them a secular and foreign appearance.