Law of Afghanistan

The legal system in Afghanistan is a complex way of organizing rules and justice. It is currently based on uncodified Sharia. Sharia is a set of Islamic laws. These laws are not written down in a single, official book of codes. Instead, they are interpreted by scholars. In Afghanistan, the current ruling group, the Taliban, uses the Hanafi school of jurisprudence. Jurisprudence is the study of how laws are applied and understood. The Hanafi school is one specific way of interpreting Islamic law. This approach guides how the country handles everything from civil matters to criminal justice.

To understand how this works, we must look at the specific methods used by the current government. The Taliban follow a strict Hanafi-only approach. This means they do not use other interpretations of Islamic law. They also do not use a list of international rights to guide their decisions. This is different from a country like Pakistan. Pakistan uses a non-exclusive parliamentary approach to Islamic law. In contrast, the Taliban's stance is more like the Ja'fari approach used in Iran. Even though the Taliban generally oppose written codes, they have used a specific guide in the past. They once instructed judges to consult the Mecelle. The Mecelle is a late Ottoman codification of Hanafi Mu'amalat, which are rules for civil dealings.

The history of Afghan law shows many different stages of change. For centuries, the system has included Islamic, statutory, and customary rules. Different leaders have introduced different types of laws. During the monarchy, the government created four volumes of civil law. These were based on models from Egypt. Later, laws were made under President Daoud Khan. Other rules came from the Democratic Republic between 1978 and 1992. The Mujahideen ruled from 1992 to 1996. The first Taliban regime was in power from 1996 to 2001. Then, the Islamic Republic of Afghanistan existed from 2004 to 2021. Now, the country is under the Islamic Emirate of Afghanistan.

During the era of the Islamic Republic, the law followed a specific hierarchy. Article 130 of the 2004 Constitution set the rules for judges. It stated that judges must apply the written constitution and legislation first. They were only allowed to use Hanafi fiqh if a written rule could not be found. Fiqh is the human understanding and practice of Islamic law. This era had a structured judicial system with five major types of courts. The Supreme Court was the highest authority. It had nine members, including a chief. The president and the house of the people helped appoint these members.

Other courts in the Republican era served specific purposes. The Court of Appeals was made up of a chief and several heads of Dewans. A Dewan is a specific department or division within a court. Primary courts were established within the jurisdictions of the appeals courts. There were also specialized courts for different needs. Juvenile courts were part of the primary courts in every province. These courts followed Article 44 of the law. Commercial courts were optional and could be set up in provinces. If a commercial court was not available, primary courts handled those cases.

The current judicial system is very different because the Taliban purged the previous era. They removed judges who were trained in modern Republican state legislation. Now, the Amir al-Mu'minin, or Supreme Leader, appoints the judiciary directly. The judges hold specific titles that show their religious training. These titles include Shaykh, Mufti, and Maulvi. These names suggest the judges have studied prophetic traditions. They likely received training in a Madrassa, which is a religious school. This ensures they are qualified to issue answers according to the Hanafi school.

The Taliban use a three-tiered court structure to manage cases. The first tier consists of District courts. These are primary courts located in most districts. They usually hear cases only one or two days per week. The second tier is the Provincial courts. These courts handle appeals and more complicated legal matters. They also deal with highly politicized cases. For example, if a Taliban commander is involved in a case, local judges might be afraid to rule against them. This fear can make it hard for judges to be impartial. Because of this, many people choose not to appeal their cases.

The final tier is the Supreme Court. This is the highest court for appeals. However, it is described as the least clearly understood part of the system. The entire legal structure has shifted from a system of written, multi-layered laws to a system centered on religious interpretation. This change affects how every citizen interacts with the state. It connects the country's history of different governments to its current religious identity. The way laws are made and enforced remains a central part of how Afghanistan functions today.