نوع مقاله : مقاله پژوهشی
نویسندگان
1 دانشجوی دکتری حقوق جزا و جرمشناسی، گروه حقوق جزا و جرمشناسی، دانشکده حقوق و علوم سیاسی، دانشگاه مازندران، بابلسر، ایران
2 استاد، گروه حقوق جزا و جرمشناسی، دانشکده حقوق و علوم سیاسی، دانشگاه مازندران، بابلسر، ایران.
3 استاد، گروه حقوق جزا و جرمشناسی، دانشکده حقوق و علوم سیاسی، دانشگاه مازندران، بابلسر، ایران
چکیده
کلیدواژهها
موضوعات
عنوان مقاله [English]
نویسندگان [English]
Introduction
The Islamic Emirate of Afghanistan (the Taliban), as the current ruling regime in Afghanistan, has issued a series of legal texts and decrees across various domains, including criminal matters. The primary basis for adjudicating disputes and conducting criminal proceedings in this system is Islamic jurisprudence (fiqh), followed by the decrees issued by the Taliban’s supreme leader, which are treated as binding laws. In recent years, more than one hundred decrees and several legislative texts have been enacted under titles such as the “Law on Enjoining Good and Forbidding Evil,” the “Law on Hearing Complaints,” the “Judicial Procedures Charter,” and two judicial codes of conduct. The central question of this study is: What is the status of the principle of legality of crimes and punishments within the legal structure of the Islamic Emirate (Taliban)? The findings, derived through a
The Taliban’s Legislative Policy Toward the Principle of Legality …
descriptive-analytical method, indicate that this principle has not been explicitly or systematically recognized in any of the Taliban’s legislative texts. However, in some instances, indirect acknowledgment of the principle can be inferred.
Method
This study adopts a descriptive-analytical approach, based on library and documentary sources. The data consists of content analysis of laws and decrees issued by the Taliban during the leadership of Mullah Omar and Mullah Hibatullah. The research aims to assess the extent to which these legal instruments align with the principle of legality, drawing upon its theoretical foundations and the accepted standards of contemporary criminal law.
Findings
The study reveals that the principle of legality of crimes and punishments—which had been explicitly enshrined in the Constitution and Penal Code during the era of the Islamic Republic of Afghanistan—has lost its formal status following the Taliban’s return to power in 2021 (1400 AH). Under the legal framework of the Islamic Emirate, there exists no explicit or systematic legal provision affirming this principle. In only a few instances, limited implicit references can be inferred from vague expressions such as “against the law” or “without a court ruling.” The decrees issued by the Taliban leader and references to Islamic jurisprudential rulings have replaced formal statutory legislation. This is even though the principle of legality not only does not conflict with Islamic norms but is in fact supported by foundational jurisprudential rules such as “Qabḥ al-‘iqāb bilā bayān” (the reprehensibility of punishment without prior notice), “Dar’ al-ḥudūd bi-al-shubuhāt” (the avoidance of imposing ḥudūd punishments in cases of doubt), and the principle of permissibility (aṣālat al-ibāḥa). Nonetheless, the Taliban has not systematically utilized these jurisprudential capacities, and has instead adopted a dualistic and inconsistent approach. This reflects a clear deviation from the principle of legality, highlights the weakness of the legislative system, the lack of criminal clarity, and the resulting legal uncertainty. These issues stand in stark contrast to the principles of human rights, criminal justice, and separation of powers, and they pose serious challenges to the realization of fair trial standards.
Volume 18, Issue 2, Summer 2026
Conclusion
The principle of legality of crimes and punishments—one of the foundational tenets of modern criminal law and a safeguard of individual liberties—does not hold a clear or institutionalized position within the legal framework of the Islamic Emirate (Taliban). Following the collapse of the Republic and the dismantling of conventional legislative structures, criminal decision-making has shifted primarily to Islamic jurisprudential sources and the decrees of the Taliban leadership. However, the official texts and issued decrees contain no explicit or systematic reference to the principle of legality. The Taliban’s legal approach is largely grounded in traditional interpretations of Sharia and the rulings of the Emir, which lack legal transparency, criminal predictability, and codified procedural safeguards. This situation reflects a regression from the standards of modern criminal justice and demonstrates that, rather than institutionalizing the principle of legality, the Taliban has prioritized a jurisprudence-based and decree-driven model of governance. This model stands in serious contradiction with the principles of criminal justice, the rule of law, and the structural guarantees of fair trial proceedings.
کلیدواژهها [English]
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