“Innovator”: A Label That Can Be Applied to Anyone

Article 2, paragraph 8 of the Penal Code of the Islamic Emirate introduces the concept of “innovator” (mubtadi‘) as one of the key terms. In some analyses, this term has been portrayed as a tool for excluding sects such as the Shia or the Ismailis. However, in the Hanafi jurisprudential tradition, the concept of bidah (innovation) does not necessarily imply from Islam or belonging to a separate sect; rather, it often refers to doctrinal or practical innovations within a religious tradition itself. For this reason, in some official statements by Taliban spokespersons, it has been suggested that the term is primarily aimed at Salafi or Wahhabi movements, rather than other Islamic sects.

Nevertheless, legal analysis cannot rely solely on the declared intent of the drafters; it must instead focus on the interpretive capacity of the legal text. The absence of a precise definition of bidah in the Penal Code of the Islamic Emirate creates the possibility for this concept to be interpreted expansively in practice. Under such conditions, the label “innovator” can become a flexible tag whose scope extends far beyond the lawmaker’s original intent.

Historical experience shows that the concept of bidah has always been contested and open to interpretation. Because there is often no clear boundary between “tradition” and “innovation,” its identification typically depends on the theological or jurisprudential perspective of the interpreting authority. As a result, when such a concept is incorporated into a legal text without a precise definition, there is a risk that the label “innovator” may be used as a tool for excluding or marginalising different groups.

From a legal perspective, the central issue is not merely the intention of the legislator, but the structure of the legal text and the breadth of its interpretive scope. Even if the original aim of the drafters was limited to addressing certain intra-Sunni movements, the lack of a clear definition of bidah leaves open the possibility that, in practice, the concept could be applied against a much broader range of religious or intellectual groups. For this reason, the historical use of accusations of bidah in religious conflicts serves as a cautionary lesson: a concept that has repeatedly been used for doctrinal boundary making, when introduced into law without a clear definition, can become a tool for expansive interpretation and discriminatory application within a legal system.

Which Class Do You Belong To? Punishment Based on Social Status

One of the notable aspects of the Penal Code of the Islamic Emirate is the way crimes and punishments are classified. In modern legal systems, offences are typically categorised based on the severity of punishment, such as felonies, misdemeanours, and infractions. However, such a classification is not found in the Penal Code of the Islamic Emirate. Instead, Article 9 reflects a form of classification based on the offender rather than the nature or gravity of the crime.

In the footnotes, classical jurisprudential sources are explicitly cited, including Al-Fatawa al-Hindiyya (compiled during the reign of Aurangzeb in 1667) and Radd al-Muhtar by Ibn Abidin (19th century). These references suggest that the drafters sought to base the regulation of criminal life in a society of roughly 40 million people in 2026 on legal opinions formulated 300 to 400 years ago, within a social context in which hierarchical structures, such as the Hindu caste system, played a significant role.

The reference to Al-Fatawa al-Hindiyya indicates that the model for structuring punishments emerged within a specific historical context where social stratification and distinctions were deeply embedded. Transposing such models into contemporary Afghan society, without rethinking modern concepts of justice, equality, and citizenship, may lead to the reproduction of structural inequality within the criminal justice system. The issue here is not merely a single provision, but rather a legislative method that imposes the past onto the present without critical adaptation.

What brings the Penal Code of the Islamic Emirate closer to a caste-like system is not superficial similarity, but a shared theoretical and structural foundation: in both systems, an individual’s social status serves as a basis for determining their rights and punishments.

Moreover, terms such as “scholar,” “elite,” “merchant,” or “common people” appear in the text, yet no clear or codified criteria are provided for identifying these categories. This ambiguity may give law enforcement authorities broad discretion, opening the door to subjective interpretation and potentially discriminatory application.

Dancing Is Forbidden, But What Is “Dancing”?

Conceptual ambiguity in certain provisions of the Penal Code of the Islamic Emirate is such that it can lead to an unchecked expansion of judicial discretion. For example, Article 59, which criminalises dancing, illustrates a case of vague criminalisation. In this provision, not only dancers but also organisers and even spectators are considered offenders, yet no clear definition of what constitutes “dancing” is provided. In a multicultural society like Afghanistan, such ambiguity can result in restrictions on the cultural rights of different ethnic groups.

Similarly, in relation to “immoral and sinful gatherings”, Article 40 provides that any individual present at such a gathering, even without criminal intent or active participation, may be treated as an accomplice. Such a rule conflicts with the principle of individual criminal responsibility and the presumption of innocence.

Silence Is a Crime: A Society with Ever-Watchful Eyes

Article 24 of the Penal Code of the Islamic Emirate stipulates that if a person is aware of consultative meetings or subversive actions by opponents of the regime and fails to report them or take action against them, they shall be subject to tazir punishment.

In practice, this provision treats silence as a crime and creates a kind of general duty to report. Such an approach can have wide-ranging social consequences, including the spread of distrust and the weakening of social bonds.

Rights Lost in the Law

One of the most significant shortcomings of the Penal Code of the Islamic Emirate is the absence of key guarantees of fair trial. In this document:

• The right to remain silent is not recognised.
• The right to access a lawyer is not provided.
• The concept of a “suspect” does not exist within the criminal process.

As a result, within this system, an individual is effectively classified either as an “accused” (under Article 2, paragraph 12) or as a “criminal” (under Article 2, paragraph 13). Moreover, in some cases, the attribution of an offence may be based solely on the testimony of a single “just” (‘adil) individual, even though the criteria for determining such “justice” are not defined.

Every Muslim a Judge: The Court in the Street

In some provisions of the Penal Code of the Islamic Emirate, the enforcement of punishments is envisioned in a decentralised manner. For example:

• The execution of tazir punishments by ordinary Muslims
• Direct action against opponents under Article 24
• The authority of a husband to discipline (Article 32)

Such provisions can lead to the fragmentation of penal authority and weaken the state’s exclusive control over the use of coercive force. Under these conditions, the boundary between formal justice and private violence gradually becomes blurred.

What the Law Does Not Say

Critiquing a law is not limited to examining what is written in the text; it must also consider what has been omitted. In the Penal Code of the Islamic Emirate, there is no reference to many contemporary crimes, including:

• Cybercrime
• Money laundering
• Tax offenses
• Environmental crimes
• Violations of intellectual property
• Crimes against humanity

These silences suggest that the primary focus of the Code is more on social and normative control than on addressing complex economic and organised crimes.

Conclusion

And now we return to the initial question: was 5 January 2026 the end of a dream, or the beginning of a nightmare? The dream of a people who have endured more than four decades of war is nothing more than to live in a country where laws are written based on equality, where rich and poor, scholar and layperson, women and men are equal before the law. The dream of Afghanistan was a society in which silence is not a crime and “discipline” is not a pretext for violence.

The Penal Code of the Islamic Emirate, however, paint a different picture: fatwas from 400 years ago as the law governing the lives of 35 million people; social classification at the heart of justice; elastic concepts like bidah in the service of power; and a line between discipline and torture that is only millimetres apart.

Is this the end of a dream? Perhaps. The end of the dream of a law that protects citizens from power. The end of the dream of equality before the law.

Or perhaps it is the beginning of a nightmare. A nightmare in which anyone, in the name of “enjoining good,” can impose punishment. A nightmare in which silence is a crime and neighbours must watch one another. A nightmare in which crimes such as torture, money laundering, and crimes against humanity are absent from the legal framework, because the priority is not justice, but control.

Now, the judgment is yours: the end of a dream, or the beginning of a nightmare?

15 Jadi 1404 (January 5, 2026) may be remembered as a turning point in the development of Afghanistan’s criminal law under Taliban rule, but one that raises serious concerns about fairness, clarity, and the direction of legal reform. The publication of the 58-page document titled “دمحاکمو جزایی اصولنامی” does not simply signal legal development; rather, it suggests a system that appears vague in parts, heavily restrictive and deeply rooted in pre- modern legal thought. Issued with the signature of the Taliban leader, it consists of an introduction, three sections, ten chapters, and 119 articles. Its structure is organised as follows: the first section is devoted to Tazeer (Punishments set according to an authority’s discretion), the second to hudud (fixed punishments prescribed under Sharia) and Qisas (retaliation in kind), and the third to Diyat (Blood money in Islam).

One of the notable features of this document is the explicit reference in the footnotes of its articles to classical jurisprudential sources, including Al-Fatawa al-Hindiyya, compiled during the reign of Aurangzeb in the 17th century, and Radd al-Muhtar ‘ala al-Durr al-Mukhtar by Ibn Abidin from the 19th century. The inclusion of these sources indicates that the drafters sought to adopt the Hanafi jurisprudential tradition as the primary basis for legislation. However, this very approach raises a fundamental question: are we witnessing the development of a modern legal system, or the direct transplantation of centuries-old fatwas (religious rulings or answers given by an Islamic scholar) into the form of statutory law for a contemporary society?

This question becomes even more significant when we consider that the document in question was drafted in an environment lacking an elected legislative body. Therefore, a proper legal analysis requires clarification of the institutional channel through which this document was issued: was it promulgated by decree of the Taliban leader, or was it approved within the framework of a leadership council? Using the term “adoption” or “enactment” for such a text without specifying its issuing authority may lead to conceptual ambiguity in legal analysis.

This blogpost seeks to examine the Penal Code of the Islamic Emirate from the perspective of contemporary criminal law. To this end, the analysis will focus on several key axes: the status and legal nature of the document, conceptual ambiguities in certain key terms, structural challenges in legislative drafting, the consequences of vague criminalisation, the state of fair trial guarantees, and legislative gaps in the area of contemporary crimes.

Law or Fatwa? The Puzzle of a Document’s Identity

One of the first analytical challenges regarding this document is the blending of different normative levels within the structure of the legal text. In modern legal systems, there is usually a clear distinction between substantive rules (the definition of crimes and punishments) and procedural rules. This separation is intended to enhance clarity, predictability, and to limit the scope of judicial interpretation. However, in the Penal Code of the Islamic Emirate, this boundary is not consistently observed; in some instances, the legal text, jurisprudential sources, and even rules on the execution of punishments are presented within a single unified structure.

An example of this situation can be seen in Article 4. This article states the following regarding the implementation of various Islamic punishments:

In the enforcement of hudud, qisas, and diyat, rulings are carried out based on Sharia by the Imam or ruler; however, in discretionary (tazir) punishments, discipline may also be carried out by religiously authorised individuals.

Alongside this provision, the footnotes to the articles refer to classical jurisprudential sources such as Al-Fatawa al-Hindiyya and Radd al-Muhtar. In this way, the legislator not only sets out the legal rule but simultaneously incorporates its jurisprudential foundation into the structure of the text. This legislative method results in the intertwining of three distinct normative levels within a single provision:

1. Legislative level: The text of the article, drafted as a binding legal rule for the courts
2. Jurisprudential level: Footnote references to classical fiqh texts that serve as interpretive foundations for the ruling.
3. Enforcement level: The provision allowing certain punishments to be carried out by non-judicial actors, such as a husband or other individuals deemed religiously qualified.

This blending can have significant practical consequences. First, a judge is not confronted with a single, clear legal text but is compelled to interpret not only the statutory provision but also the referenced jurisprudential sources in the footnotes. Such a situation expands the scope of judicial interpretation and, in the absence of clear interpretive standards, increases the likelihood of divergent understandings among judges and the exercise of personal discretion in issuing rulings.

Second, allowing the enforcement of certain tazir punishments by non-judicial individuals weakens the boundary between the formal justice system and private punishment. In most contemporary legal systems, the use of coercive force and the execution of punishments fall exclusively within the authority of the state and judicial institutions. However, under the Penal Code of the Islamic Emirate, delegating part of the penal authority to private individuals creates fragmentation in the exercise of criminal power, which may undermine the coherence of the criminal justice system.

From this perspective, the issue is not merely the content of a specific article. Still, it relates to the legislative method itself—a method in which law, jurisprudential interpretation, and the mode of punishment enforcement are placed side by side without institutional separation. Such a structure can reduce legal predictability and create the conditions for differing and at times conflicting interpretations within the judicial system.

Silence of the Law: When Nothing Is Clearly Defined

The principle of legality of crimes and punishments is considered one of the most fundamental principles of contemporary criminal law. According to this principle, no act is regarded as a crime and no punishment is imposed unless it has been clearly and precisely defined by law in advance. The purpose of this principle is to limit the state’s punitive power, ensure legal predictability, and prevent broad or arbitrary interpretations in judicial proceedings.

In the Penal Code of the Islamic Emirate, this principle is not explicitly stated. Nowhere in the text is it specified that no act outside this document shall be considered a crime, or that no punishment other than those prescribed therein may be imposed. Moreover, in some provisions of the document, criminal concepts are defined in such general and vague terms that a wide range of behaviours could fall under them. For example, some articles refer to crimes such as the “promotion of innovations (bid‘ah)” and “corruption,” without providing precise definitions or clear criteria for identifying these concepts. The absence of a specific definition of bid‘ah may lead to expansive interpretations, such that any behaviour, speech, or religious practice that deviates from the official interpretation could be classified under this criminal category. In a multi-religious society like Afghanistan, such ambiguity could potentially be used against other religious groups.

Similarly, the concept of “corruption” is used broadly in certain provisions without specifying its constituent elements or concrete examples. In the absence of such criteria, determining what constitutes corruption is effectively left to the interpretation of judges or enforcement authorities. This situation may lead to an expansion of criminal intervention and a reduction in legal predictability.

From a theoretical perspective, the principle of legality of crimes and punishments is one of the most important achievements of the intellectual developments of the Enlightenment in Europe. Thinkers such as Montesquieu advanced this principle as a reaction to judicial arbitrariness in pre-modern systems, systems in which judges could classify various behaviours as crimes based on personal interpretations of morality, religion, or custom. The establishment of this principle in modern criminal law marked the transfer of the authority to define crimes from judges to legislators and imposed clear limits on the state’s punitive power.

Within this framework, the absence of an explicit statement of the principle of legality and the use of vague concepts in the Penal Code of the Islamic Emirate may have significant implications for the criminal justice system. The weakening or omission of this principle in contemporary Afghanistan, especially in a society with broad religious and cultural diversity, may expand the scope of judicial interpretation and reduce the legal security of citizens. In other words, in the absence of precise legal definitions, the boundary between lawful and criminal behaviour remains unclear, creating the potential for arbitrary application of the law in judicial proceedings.

Continued in Part 2 which can be accessed here.

Violence against women (VAW) is a global epidemic that affects all nationalities. VAW and long-term deprivation of human rights and freedoms are a bitter reality in Afghanistan. However, despite the discrimination, social and cultural barriers, two decades of democracy in Afghanistan provided an opportunity for women to further their struggle for the right to contribute to society as much as possible.                               

In 2009, in a major breakthrough, the Elimination of Violence Against Women Law (EVAW Law) was introduced. It defines violence as those acts which cause damage to the personality, body, property, and spirit of a woman. Twenty-two acts of violence were named in this law, including rape, forced prostitution, underage marriage, and deprivation of the right to education, work, and access to health services. Sentences can range from shorter terms of imprisonment to the death penalty. The law provides for measures to protect the rights of victims, namely: prosecution of the defendant, access to a support center or safe house, access to urgent and free health services, and access to legal aid. Alongside punishment, the defendant could also be required to pay compensation for damages.

To implement the EVAW Law, women’s support centers (safe houses) were set up in some provinces in Afghanistan, functioning as protective environments for women fleeing their homes due to violence. Along with the EVAW law, other measures were taken by the former government to protect women. This included appointing special prosecutors and establishing courts to combat violence, setting up the Ministry of Women’s Affairs, and providing for divorce through the creation of family courts, and enacting the Personal Status Law.

After the takeover by the Taliban, women who had struggled, worked, and studied under the umbrella of democracy and relative freedom for two decades lost everything. Women have been protesting continuously and bravely, demanding their rights. But the Taliban’s response has been warnings, threats, and beatings.

Currently, women are prevented from going to work, studying, and freely moving in society. They have to wear special clothing. As of 22 January 2022, the Taliban published posters obliging women to wear the burqa and the black veil, the chador. Women have responded by saying that the black veil is not part of their culture. The Taliban also prohibits women from wearing attractive colors in public, using perfume, and wearing high heels that make a sound when walking.

The Taliban have additionally taken freedom on the streets away from women. They have imposed limitations on the time and location for protests by women. Women are also banned from traveling without a male (mahram) family member. This has had a huge impact on women’s ability to escape abuse.

While previously the EVAW Law provided crucial support for Afghan women, under the current regime there is no similar law or court. The lack of a provision to prosecute crimes committed against women has created an environment of impunity for the perpetrators, making violence normal and acceptable. We hear about disturbing cases in social media. For instance, in one case a woman went to court to file a claim against her husband. A decision was made by the person in charge of security at the gates of the court that the woman must either live with her husband with dignity or be sent to prison. As a result, women can also no longer report abuse. This lack of access to the criminal justice system has made women particularly vulnerable. Safe houses, which the Taliban sees as having caused the collapse of families, have been closed.

Overall, the Taliban’s point of view about women is a traditionalist, cultural view embodied within religious dogmatism, according to which the voice of women, their faces, and the sound of women’s feet are considered lustful and forbidden. Indeed, to the Taliban, women are mentally deficient. In their view, a proper Afghan man would not allow his wife to appear outside the house, to interact with a man other than those in her family, nor to wear colorful clothing. The outlook for women’s rights is bleak. We continue to ponder over these questions:

Will girls be allowed to return to school?

Will women be allowed to work?

Will women have freedom of movement?

Will women and girls be forced to marry?

Will they have access to justice?

Will women’s human rights be respected?

Sadly, it is difficult to be optimistic.