Introduction

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.