The United States’ withdrawal from Afghanistan, and the Taliban’s subsequent takeover of the country has brought, once again, Islam and Islamic law to the fore in recent news coverage, reports, and analyses. This renewed attention to Islamic law is in part due to the fact that the Taliban identifies itself as a Muslim military organization that is now forming a government with an aim to establish and “implement sharī’a” in Afghanistan. To be sure, prior to the Taliban takeover, the Afghan Constitution already incorporated sharī’a, or Islamic law. In a review of its existing constitutional and legal system and the incorporation of Islamic law, the SHARIAsource country profile on Afghanistan outlines the following:
Islamic law is a principle source of legislation in Afghanistan. It is referenced throughout the Constitution, which declares Islam as the state religion (Article I). However, followers of other faiths are free within the bounds of law in the exercise and performance of their religious rituals (Article II). The Constitution further states that all laws of the country should be consistent with the tenets and provisions of Islam (Article III).
Although Afghanistan has no official school of Islamic law, the majority of the population is Sunnī (adhering to the Ḥanafī school), and there is a significant Shīʿī minority as well. In cases involving personal matters of Shīʿī Muslims, courts will apply Shīʿī jurisprudence (Article 131). Otherwise, they will apply Sunnī (Ḥanafī) jurisprudence. Before taking office, judges must swear an oath to respect sharīʿa and the Constitution. The prior Afghan model of Islamic constitutionalism should be understood in terms of who is interpreting Islamic law, and how—as I more fully explored in the article “We the Jurists” (Journal of Constitutional Law 10 (2008)). (For other Islamic constitutions, see the special collection of constitutions across the world that incorporate Islam into their legal order in many and varied ways.)
The “new” Taliban proclaim to establish a new interpretation of sharī’a as state law and as a part of ordinary life. Their emphasis, new and old, appears to be on power. It manifests as an outsized focus on the legal system’s treatment of Afghan women, which has generated widespread controversy both domestically and internationally. Labels of a “strict” interpretation of Islamic law incorrectly suggests that practices of wanton violence, corruption, coercion in the public sphere, or oppression of women and destruction of cultural artifacts are hewing closely to recognized Islamic norms. They’re not. Rather than “strict” or “faithful,” the Taliban have a power-reinforcing interpretation of Islamic law at odds with the historic and regional tradition, in comparative perspective. It is up to those regarding them to determine whether and to what end one informs the other, and how better knowledge of Islamic law historically and comparatively can help better understand or guide the current and future developments in the region.
These observations about the return of the Taliban, even if they’re now middle-aged and bear a new (but untested) outlook on Islam, raise questions around (1) the definition of sharī’a, or Islamic law, generally; (2) the existing and possible applications of Islamic law in Afghanistan under the new regime; (3) the status of Islamic law vis-a-vis the state in Afghanistan and by comparison in surrounding countries in South Asia; (4) perspectives and positions on women and gender in Islamic law, with a focus on the region; and (5) criminal law and the laws of war under Islamic law.
We at the Islamic Law Blog have compiled various resources, in the form of short posts, articles, or videos addressing precisely these areas, to help inform and frame discussions on Islamic law today. These resources collectively point to diverse approaches within a 1400-year-old legal tradition, spanning the globe, comprised of multiple approaches to law that are equally authoritative and all trying to determine how best to order society. The following sources represent extensive yet digestible research from journalists and from the scholars, editors, and affiliates at the Program in Islamic Law at Harvard Law School, grouped around the five, thematic questions noted above.
(1) What Is Sharī’a?: Three Explainers on Islamic Law
Setting the Record Straight on Sharīʿa: An Interview with Intisar Rabb
By Sally Steenland, Center for American Progress
What Is Shariah and Why Does It Matter?
By Sherman Jackson, University of Southern California
Forum on Islamic Law: Current State of the Field
By Leading scholars of Islamic Law
(2) Islamic Law & History in Afghanistan
The Taliban and Sharīʿa: An Interview with Adnan Zulfiqar
By CGTN America Original
Afghanistan: The Center of the World & Afghanistan: The Rise of the Taliban
A Podcast Series by Throughline (with co-host Rund Abdelfatah & Ramtin Arablouei)
(3) Islamic Law, Authority, and the State: Views from South Asia
Islamic Jurisprudence for Revolution
By Adnan Zulfiqar, Rutgers University, USA
A Duty to Obey Muslim Jurists?
By Omar Farahat, McGill University, Canada
Islamic Judicial Review in Practice
By M. Zubair Abbasi, LUMS, Pakistan
- Part 1: Decolonization through Islamization of Laws
- Part 2: Strategic Islamization of Laws
- Part 3: Sharia and State Law
(4) Women and Gender in Islamic Law: Views from South Asia and Beyond
Law, Narrative, and the Case of Fāṭima’s Chores
By Marion Katz, New York University, USA
Women’s Rights to Divorce under Islamic Law in Pakistan and India
By M. Zubair Abbasi, LUMS, Pakistan
By Jeff Redding, Melbourne Law School, Australia
(5) Criminal Law and Laws of War
New debates about the use and abuse of Islamic criminal law in Afghanistan
By Islamic Law Blog (editors) (Oct 2020)
The Modern Transformation of the Duty to Fight
By Adnan Zulfiqar, Rutgers University, USA
By leading scholars of Islamic criminal law and the new code in Brunei (Spring 2020)
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We hope that the foregoing resources will help frame the background against which to inform, assess, and/or respond to recent developments relating to Afghanistan and Islamic law. To follow the latest developments, check our weekly roundups on Islamic law in the news, including new developments on Afghanistan.
Professor of Law & History, Harvard University
Editor-in-Chief, Islamic Law Blog & SHARIAsource