Islamic Law, the Taliban, and the Modern State

By Haroun Rahimi

Are the Taliban modern? The answer to this question depends on what we mean by “modernity” and how we define the Taliban, neither of which is easy to do. If one takes “modernity” to mean a particular temporality, then it could be argued that the Taliban are modern simply by virtue of having emerged during that temporality. However, if one defines modernity by a set of new ideas, then it could be meaningfully asked how the Taliban relate to those ideas. In this essay, I intend the second meaning of modernity.

Why should we care if the Taliban are modern? I argue we should care because the case of the Taliban exposes some fundamental problems of how contemporary Muslims relate to the pre-modern Islamic tradition.

In 1996, against a backdrop of a brutal civil war, as the Taliban were posed to overtake the Afghan state for the first time, Mullah Omar, the group’s late founder, said the Taliban’s mission is to “implement the dīn [way] of God on God’s land, to serve the God’s word, and to establish sharʿī rulings and udūd [limits] of Allah.”[1] He articulated a division of labor in implementing this mission between the ʿulamāʾ [those who are trained in Islamic sciences broadly defined] and the Taliban [the plural of Talib, or a student of Islamic sciences]. The Taliban, whom he described as “foot soldiers,” ought to take up arms and fight to “clean the land from corruption and corrupters,” making the establishment of sharīʿa possible. What makes their fighting different from other fighting factions is that they are fighting to put the ʿulamāʾ in charge, Mullah Omar stated. He argued that the only way to establish God’s limits and sharīʿa on the land is to put the ʿulamāʾ in charge because only they know the “limits of God” and sharīʿa.

Almost three decades after Mullah Omar’s statement, the current acting Chief of Justice of the Taliban’s de facto government wrote, “an Islamic state will not succeed without implementation of laws of Qur’ān and Sunnah in accordance with the understanding of the early generation of Muslims and Jurists (Mujtaidīn), and this was the aim of the Jihād of the Islamic Emirate of Afghanistan [the title of the Afghan state under the Taliban]…”[2]

Beyond this broad mission statement, pinning down the Taliban’s specific ideas is no easy task. In this piece, I draw on the statements and writings of the Taliban’s top leadership, along with their enacted policies, to describe the Taliban’s views as it relates to the core modern ideas. This is not meant to suggest that the Taliban are monolithic or that views attributed to the group here are espoused uniformly by all members of the group. However, I submit that the core ideas attributed to the group here are a stable part of what defines the Taliban.

Modernity is associated with the rise of the nation-state and bureaucracy, the decline in the public influence of religion, the assertion of individual rights, and the increasing influence of rational empiricism. All these ideas emerged in the western world and in a dialogical relationship with Christianity, shaping modernity and reshaping Christianity. These ideas also co-evolved with colonialism.[3] Given the uniquely Christian backdrop of modernity, and its close connections with colonialism, one may reasonably question the suitability of modernity in a Muslim context. Should Muslim societies modernize or at least modernize in the same way?

This question forces contemporary Muslims to answer another question. Perhaps a more poignant question: how should Muslims relate to pre-modern Islamic ideas and experiences? How should Muslims relate to their tradition? There is a spectrum of responses generated by this question. On one end are those Muslim thinkers who want to Islamize western modernity,[4] often by locating the seeds of modern ideas in the vast reservoir of pre-modern Muslim experiences and ideas. To deconstruct the pre-modern Islamic orthodoxy, these scholars have militated against Ashʿarīsm of Sunnī Islam [Ashʿarī is a school of theology that privileges revelation, as oppose to reason, as a way to determine the morality of an action],[5] the fiqh-centrism of Islamic orthodoxy [fiqh refers to Islamic jurisprudence],[6] the political economy that underpinned the production of (ethical) knowledge in pre-modern Islam,[7] and the authority of tradition more broadly.[8]

On the other end, there are those scholars who adopt a critically discriminating approach to western modernity. These scholars envision multiple modernities and argue for a Muslim modernity, a modernity that embraces some elements of western modernity but rejects others. For example, Abdurrahman Taha, who is a leading philosopher the Islamic world, rejects the “denuded rationality” of western modernity but incorporates critical inquiry.[9] Wael Hallaq, a leading scholar on pre-modern fiqh, perhaps goes even further. Commenting on Taha’s writing, he questions the need to import critical inquiry from western modernity and the possibility of avoiding the destructive outcomes of western modernity, for example, in the form of large-scale war-making and environmental destruction, from other elements of western modernity.[10] Wael Hallaq seems to lean towards a complete rejection of western modernity, an approach that he too may admit is primarily deconstructive.[11]

What these opposing views have in common is their conviction that the Islamic tradition is incompatible with (western)[12] modernity. What falls in between these two sets of opposite views is a range of more narrow responses that advance a varied synthesis of pre-modern Islamic tradition with modernity, sometimes remaining methodologically traditionalist and sometimes not. Jonathan Brown, a prominent contemporary adīth scholar, possibly produces the most compelling synthesis of modern conclusions with the traditional methodology of fiqh (the best example of this is his book on Islam and Slavery where he employs an ʿurf-based [custom-based] argument to defend the moral authority of the tradition in relation to moral evolution of our sensibilities towards slavery).[13]

Where do the Taliban fit in this landscape? In terms of relation to tradition, the quote from the Taliban’s Chief Justice suggests that the Taliban are committed to pre-modern fiqh, particularly of the Ḥanafī madhhab. However, beyond this short answer, upon closer examination, the Taliban’s relationship with modernity appears complex. In some ways, the Taliban is very modern but in other ways, it is the most thorough rejection of western modernity.[14]

I start with what makes the Taliban modern since that seems to be the more implausible proposition. The Taliban fully accept the nation-state and the international order that is built on the concept of national sovereignty. Externally, the Taliban have maintained that the sovereignty of the Afghan state empowers them to implement their version of an Islamic state within the boundaries of Afghanistan without foreign interference.[15] Internally, the Taliban are committed to building a Weberian state. It has monopolized the use of violence and extended the writ of the Afghan state beyond what other Afghan states had done in recent Afghan history albeit the security situation remains fragile.[16]

The Taliban’s state-building aspirations are not periphery to the group’s core mission. The Taliban’s Chief Justice talks of Islamic state. The group makes extensive use of influential works on state affairs from within the Islamic tradition in justifying its government policies: Majallat Al-Akām Al-‘Adlīya, the Ottoman-era codification project,[17] Al-Fatāwā al-‘Ālamgīriyya[18], a legal product of Mughal Empire state building project,[19] and Al-Māwardī’s Al-Akām al-Sultānīyya [the Ordinances of Governance],[20] a book dedicated to the inner working of Islamic governance authored by a scholar of the Shāfi‘ī madhhab from the Abbāsid era. In the last instance, the Taliban rely on a book from a scholar of a rival madhhab even though they remain staunch partisans of the Ḥanafī madhhab.

While many have rightly criticized the Taliban’s ethnic biases, it could be argued that the Taliban’s ethnic makeup and tendencies are more due to their history, tools, and available tactics of governance than their ideology or view of the state—in fact, their ideology may militate against their ethnic biases (admittedly, this is a distinction without a difference to different Afghan communities who are disfranchised by the Taliban).[21] The Taliban are very sensitive to the creation of a unifying national narrative, employing the slogan of “Afghānīat” and “Islāmīat”[22]—even if that narrative remains uncompelling to the diverse makeup of Afghan society.

Presumably, having learned from the failed experience of the first Emirate, the Taliban have also accepted the Weberian bureaucratic state even if they do not have the know-how to run it well.[23] In fact, they have bureaucratized some essential religious functions such as commanding virtue and enjoining vice and fatwā-making in a government ministry [fatwā refers to an authoritative opinion on a question of Islamic jurisprudence or fiqh][24] and the Supreme Court,[25] respectively. The Taliban have also codified rulings of the Ḥanafī madhhab, relying primarily on Majallat Al-Akām Al-‘Adlīya in doing so.[26]

The Taliban have used and encouraged modern technology, especially when it helps strengthen the power of the state (most notably they leveraged social media in their campaign to take over the Afghan state[27]).

Not unlike other Muslim modernists, the Taliban have, at times, Islamized these modern ideas by relying on pre-modern Islamic sources. For example, Mullah Omar, the group’s late founder, once presented an ijāra-based argument to justify the need for perfect attendance by Taliban officials [ijāra is a contract of hire in Islamic jurisprudence],[28] while the current Chief Justice of the Taliban has made use of Al-Māwardī’s Al-Akām al-Sultānīyya to Islamize the modern ministries of the Afghan state.[29] The latter analysis especially illustrates the challenges of a systematic application of pre-modern sources to the modern context of the nation-state—i.e., the main thesis of Wael Hallaq—since the Taliban’s Chief Justice presents a pre-modern justification for a modern apparatus of a nation-state from the same source that assumed and required the Muslim ummah to be ruled by a single caliph[30]—a position opposed to the reality of international order of nation-states.

Perhaps the more important disconnect in the Taliban’s attempt to establish an Islamic nation-state while remaining exclusively committed to pre-modern jurisprudence on state and governance is that in their role as ʿulamāʾ-turned-state-builders, the Taliban have removed any separation between the ʿulamāʾ class and the ruling class, a separation that was instrumental in creating some level of political accountability in pre-modern Islamic political order.[31] This has led as much to control of the Taliban-affiliated ʿulamāʾ over the state as it has to control of the state over Afghan ʿulamāʾ.

For example, in the summer of 2022, 3000 men, the majority of whom were Taliban-affiliated ʿulamāʾ, gathered in Kabul to discuss the most pressing issues facing the newly re-established Islamic Emirate. While many hoped that the gathering would lend support to the reopening of secondary schools for girls, the final announcement of the gathering remained vague on the issue. Article 9 of the Communiqué acknowledges the importance of both religious and modern education, but it does not clarify if women too have a right to modern and religious education.[32] The same article stresses the need to observe the undefined rights of women within the limits of sharīʿa. While the Communiqué remains unclear on women’s rights, it is clear in its support of the Emirate to the extent that it bans public disagreement among the ʿulamāʾ on issues that are deemed controversial,[33] in effect banning public criticism of the Taliban’s approach to enforcement of Ḥanafī Islam. In a more recent example, the Taliban’s Acting Minister of Higher Education, a figure close to the Taliban’s supreme leader, has argued that anyone who undermines the Islamic state even if it is by words is bāghī and must be put to death[34] [bāghī in Islamic jurisprudence refers to someone who revolts against the Islamic ruler].

While the Taliban’s embrace of the nation-state may make them modern, their re-publicization of religion and their rejection of individual rights makes them anti-modern.[35] Methodologically, the Taliban remain committed to the authority of the Ḥanafī madhhab. The Taliban’s acting Chief Justice writes, “It is required that the Islamic state adheres to madhhab that all or most of the residents of that state adhere to, therefore, it is required that in Afghanistan Ḥanafī madhhab is adhered to in resolving disputes and other areas of life because most people in Afghanistan have been adherents of Ḥanafī  madhhab from a long time ago and the common fiqh books in Afghanistan … have been from texts, exegeses, and fatāwā [plural of fatwā] have all been from Ḥanafī madhhab…”[36] But the Taliban reject individual rights and freedom that could be reasonably advocated using the traditional methodology of the Ḥanafī madhhab (as Ḥanafī jurists in many Muslim countries have done so). I argue that the Taliban do not reject these rights necessarily by being too formalistic; rather, they reject these rights by being committed to the pre-modern spirit of fiqh as well as Islamic ethics broadly understood. The case of Islamic ethics is especially instructive because it portrays the image of an ideal Muslim person, family, and society that animated the many authoritative figures of pre-modern fiqh.

The most illustrative case here, of course, is the Taliban’s gender policies. Many have rightly argued to the Taliban that even the traditional methodology of the Ḥanafī madhhab would not compel them to enact some of the extreme gender policies that they have.[37] The Taliban admittedly choose to enact these policies from a range of policies that could be supported using the traditional methodology of the Ḥanafī madhhab, or in fact by some of its rulings. The Taliban’s top leadership does not argue that non-religious education for girls who have reached puberty is forbidden (arām) and they admit that it is permissible (mubā).[38] While permissible, the argument goes, the Taliban Supreme Leader, as the person with authority over the community of Muslims, has the duty and the authority to restrict the permissible so that Afghan women, Afghan families, and Afghan society orient themselves towards the ethical trajectories prescribed by the pre-modern sources of Islam in which the Taliban’s Supreme Leader and his close allies are exclusively educated.[39] This argument has close affinity with the fisād al-zamān (corruption of time) argument that is often deployed to justify positions more restrictive than classical Islamic jurisprudence on moral grounds.[40]

Taliban top leadership is making these choices, one could argue, consistent with the pre-modern spirit of fiqh and Islamic ethics albeit that this spirit might have been in tension with the egalitarian Qur’ānic spirit. There is a body of post-orientalist scholarship that tries to understand the pre-modern Islamic tradition on its own terms. This body of research has established that gender hierarchy was a key feature of pre-modern fiqh. Male jurists considered womanhood a legal deficiency and saw women’s participation in public life as deemed morally dubious. Works of scholars like Kecia Ali,[41] Zahra Ayubi,[42] and Marion Holmes Katz,[43] to name a few, on pre-modern Islamic legal and ethical thoughts convincingly portray the gendered ethos of pre-modern fiqh and ethics. (It bears mention that some of the leading figures of western enlightenment held equally misogynistic views about women; Immanuel Kant is the best example of this.[44])

This is not to say, however, that the experience of Muslim women before modernity was uniformly consistent with the gendered spirit of pre-modern fiqh or Islamic ethics. Nor is it to deny the agency of Muslim women in challenging the gendered restrictions of their time often before courts and armed with fiqh-based arguments. [45] In fact, there are indications that the pre-modern male fuqahā often felt the need to forcefully articulate and reinforce the gender hierarchy as a response to defiant Muslim women.[46] Nor is it to suggest that the pre-modern texts of fiqh or Islamic ethics were necessarily more authentically Islamic than their modern counterparts. However, with all these caveats, if one looks at the body of authoritative pre-modern works of fiqh, the sources that the Taliban exclusively accept as the source of law and governance, it is hard to argue that the Taliban’s gender policies would be inconsistent with the spirit of pre-modern fiqh or Islamic ethics. Stated differently, I think it can be plausibly argued that the Taliban are refusing to reread the pre-modern Muslim texts in response to the moral evolution that has occurred outside those sources, even if that would be consistent with the pre-modern methodology, because they wish to remain faithful to the pre-modern spirit of fiqh and Islamic ethics.

Here lies a crucial point. Groups like the Taliban wish to recreate a “pure” Islamic society[47] using a textual pre-modern blueprint and as such their imagined ideal Muslim society does not contain the multitude and the normative paradoxes that pre-modern Muslim societies by virtue of being a product of a living tradition and not a textually reconstructed one contained. (It also bears mention that western intellectual thought has not been immune to idealization of tradition. Hegelian thought is best example of this.[48])

The Taliban’s relation to rational empiricism is more complex. On the one hand, the Taliban’s desire for a strong nation-state, one that could allow them to stand foreign interferences in the way of their primary religious project, compels them to create a strong economic base and obtain modern technologies of power and control. On the other hand, the Taliban intuitively understand that rational empiricism is in tension with their religious project. Rational empiricism is fundamentally anti-traditional. The Taliban Chief Justice, for example, has argued that non-religious education can corrupt minds, and even that form of it that can produce useful technology for the benefit of Muslims and the Islamic state should be cautiously promoted along with a heavy dose of religious education.[49] It is not clear whether the Taliban will be able to resolve this tension, but having learned from the failings of the first time they ruled Afghanistan, they seem committed to trying.

Having examined the relationship between the Taliban and modernity, I argue that the case of the Taliban illustrates the limits of traditionalist responses to modernity. The defender of the Islamic tradition cannot effectively counter the Taliban’s policies without admitting to an evolving source of morality outside those sources (for example, the evolution of ʿurf in Professor Brown’s writing). The case of the Taliban forces Muslims to rethink our relation to tradition more fundamentally. There is a need for a paradigm shift. One way forward would be to break from tradition, which in my opinion, is undesirable and creates alienation. The other way is to construct an alternative Islamic modernity with a critical lens towards both the Islamic tradition and western modernity. I think we should do the latter.


[1] Haq Speech, “Speech by Mullah Mohammed Omar | The Beginning of the Taliban (subtitled),” YouTube, June 16, 2020,

[2] Abdul Hakim Haqqani, Islamic Emirate and its Order [Al-ʾEmārat Al-ʾIslāmyia wa Nezāmahā] (Office of Dārul ʿŪlūm Sharʿyia: April 2022), 24

[3] For a detailed discussion of this, see Talal Asad, Genealogies of Religion: Discipline and Reasons of Power in Christianity and Islam (Johns Hopkins University Press, 1993).

[4] They would call just modernity, not a western modernity since they don’t feel a need to have a distinctly Islamic modernity.

[5] See, for example, Mustafa Akyol, Reopening Muslim Minds: A Return to Reason, Freedom, and Tolerance (St. Martin’s Essentials, 2021)

[6] See, for example, Shahab Ahmed, What Is Islam? The Importance of Being Islamic (Princeton University Press, 2015).

[7] See, for example, Ahmet T. Kuru, Islam, Authoritarianism, and Underdevelopment (Cambridge University Press, 2019).

[8] See, for example, Mohammed Arkoun, Islam: To Reform or to Subvert? (Saqi Books, 2007).

[9] See, for example, Wael Hallaq’s presentation of Taha’s philosophy in Wael B. Hallaq, Reforming Modernity

Ethics and the New Human in the Philosophy of Abdurrahman Taha (Columbia University Press, 2019).

[10] Ibid.

[11] After all he wrote book arguing that pre-modern practice of Islamic jurisprudence is fundamentally incompatible with the nation state. See Wael B. Hallaq, The Impossible State: Islam, Politics, and Modernity’s Moral Predicament (Columbia University Press, 2012).

[12] Again, the first group would not call it western modernity.

[13] Jonathan A.C. Brown, Slavery and Islam (Oneworld Academic, 2019).

[14] To some this may reveal the internal contradictions of modernity but for others it may reveal the limits of a traditionalist approach to modernity.

[15] “We assure our neighbors, the region and the world that we will not allow anyone to use our territory to threaten the security of other countries. We also want other countries not to interfere in our internal affairs,” Taliban’s Amir, Hebatullah Akhundzada reportedly said in an address ahead of the Eid al-Adha holiday. Rahim Faiz, “Taliban leader: Afghan soil won’t be used to launch attacks,” Associated Press News, July 6, 2022, In March 2023, Taliban’s acting Minister of Foreign Affairs has argued for international recognition of Taliban regime in an op-ed for Aljazeera. See Mawlawi Amir Khan Muttaqi, “Afghanistan is ready to work with the US, but sanctions must go,” Aljazeera, March 23, 2022,

[16] See Crisis Group International, “Afghanistan’s Security Challenges under the Taliban (Report N. 326),” Crisis Group International, August 12, 2022,

[17] The Taliban-enacted Administrative and Legal Procedure rules for the Courts makes extensive citations to the Majalla. See Haroun Rahimi, “Remaking of Afghanistan: How the Taliban are Changing Afghanistan’s Laws and Legal Institutions,” ISAS Working Papers, July 26, 2022,

[18] Mullah Omar’s, the founder of the Taliban, cited Al-Fatāwā al-‘Ālamgīriyya arguing he had an obligation, as a person with authority over Muslims, to forbid what is wrong. See Official Gazette 0783 (30 June 1996, reprinted in Official Gazettes 0788 and 0799).

[19] See Muhammad Zubair Abbasi, “Al-Fatāwā al-‘Ālamgīriyya: Ḥanafī Legal Code of Moghul Empire,” Islamic Studies 59, no. 4 (2020): 451-76.

[20] Not only the Taliban’s acting Chief Justice makes extensive references to this book but also the Taliban have cited this book in numerous legislations such as those in Official Gazette 1424 (November 5, 2022).

[21] Anand Gopal, “The Combined and Uneven Development of Afghan Nationalism,” Studies in Ethnicities and Nationalism 16, no. 3 (2017): 478-92.

[22] The Taliban’s  Acting Minister of Higher Education, for example, argued that “western education” for women is in contention with “Afghaniat” and “Islamiat”.  

[23] Andrew Watkins, “An Assessment of Taliban Rule at Three Months,” CTCSENTINEL 14, no. 9 (2021),

[24] Ahmed-Waleed Kakar, “In Afghanistan, Vice and Virtue Are Front and Center,” NewLines Magazine, April 25, 2022, It is, however, important to note that the Taliban’s morality police have greater control over people’s personal lives due to bureaucratic expansion. This level of control surpasses that of pre-modern Muslim states, as they lacked the same level of capability. For example, according to a statement attributed to the spokesman of the Taliban’s Ministry of Commanding Virtue and Prevention of Vice, the ministry has hired 15,000 ʿulamāʾ as preachers only in one stance.

[25] See the Taliban’s Acting Supreme Court News Conference on September 3, 2022.

[26] Rahimi, “Remaking of Afghanistan.”

[27] See, for example, Laura Courchesne, Brian McQuinn, and Cody Buntain, “Powered by Twitter? The Taliban’s Takeover of Afghanistan,” ESOC Working Paper No. 30, 2022,

[28] Official Gazette 0799, Order No. 8 (September 28, 1999).

[29] Haqqani, Islamic Emirate and its Order, 167.

[30] First Chapter of al-Māwardī, Al-Akām al-Sultānīyya (450 AH).

[31] Hallaq, The Impossible State.

[32] See the text of the Communiqué as detailed by the Taliban’s spokesman on his Twitter account here:

[33] Ibid., art. 8.

[34] Mohammad Yar Majroh, “Warnings of Neda Muhammad to Those Who Oppose the System,” ToloNews, March 14, 2023,

[35] I have made this case in another place in more details. See Rahimi, “Remaking of Afghanistan.”

[36] Haqqani, Islamic Emirate and its Order, 37.

[37] For example, Al-Azhar has released a statement in condemnation of the Taliban’s ban on girls’ secondary education.

[38] Haqqani, Islamic Emirate and its Order, 248.

[39] Ibid.  See also a readout of the Taliban’s Amir meeting with the governors which was tweeted by the Taliban’s Spokesman on Twitter (July 27, 2021).

[40] For an example of this in the context of Afghanistan see a twitter thread by a Ḥanafī  scholar commenting on the Taliban’s mandatory ijāb policy.

[41] See, for example, Marriage and Slavery in Early Islam (Harvard University Press, 2010).

[42] Gendered Morality: Classical Islamic Ethics of the Self, Family, and Society (Columbia University Press, 2019).

[43] Wives and Work: Islamic Law and Ethics Before Modernity (Columbia University Press, 2022).

[44] See, for example, Mari Mikkola, “Kant on Moral Agency and Women’s Nature,” Kantian Review 16, no. 1 (2011): 89-111.

[45] For an example of this from Afghanistan, see Ashraf Ghani, “Disputes in a Court of Sharia, Kunar Valley, Afghanistan, 1885-1890,” International Journal of Middle East Studies 15, no. 3 (1983): 353-67.

[46] For example, Zahra Ayobi in Gendered Morality suggests this much.

[47] Conceptualizing one’s political mission as purifying the society is inherently a modern project. For a more detailed analysis of this in the case of Taliban see Haroun Rahimi, A Constitutional Reckoning with Taliban’s Brand of Islamist the Politic s The Hard Path Ahead (Afghan Institute for Strategic Studies, 2021).

[48] See, for example, Thomas A. Lewis, Religion, Modernity, and Politics in Hegel (Oxford University Press, 2011)

[49] Haqqani, Islamic Emirate and its Order, 242.

(Suggested Bluebook citation: Haroun Rahimi, Islamic Law, the Taliban, and the Modern State, Islamic Law Blog (Mar. 31, 2023),

(Suggested Chicago citation: Haroun Rahimi, “Islamic Law, the Taliban, and the Modern State,” Islamic Law Blog, March 31, 2023,

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