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The law in Afghanistan is the uncodified Sharia (Islamic law), interpreted according to the Hanafi jurisprudential school. [1] The ruling Taliban has maintained a strict Hanafi-only approach, ignoring enumeration of international rights, that bears greater similarity to Iran and its "Ja'fari only" jurisprudential stance than countries like Pakistan which follow a non-exclusive parliamentary approach to Islamic law. [2] Whilst opposing codification, in the past, the Taliban written policy has instructed judiciary to consult the Mecelle, a late Ottoman codification of Hanafi Mu'amalat, in matters of civil law. [3]
The legal system of Afghanistan has held consists of Islamic, statutory and customary rules. It has developed over centuries and is currently changing in the context of the rebuilding of the Afghan state. The supreme law of the land is currently Sharia however there is complex legislation that stems from different historical periods.
For instance, the so-called four volumes of civil law were developed on the basis of Egyptian models and promulgated in the time of the monarchy. Other legislation came into force under of President Daoud Khan, the Democratic Republic (1978-1992), the Mujahideen (1992-1996), the first Taliban regime (1996-2001), the Islamic Republic of Afghanistan (2004–2021) and the current Islamic Emirate of Afghanistan. In the prior constitution of the Islamic republic, article 130 of the Afghan Constitution established that judges must apply the constitution and legislation and may only resort to Hanafi fiqh (one of the Schools of Islamic Law) if a necessary legal rule cannot be found in the written laws. [4]
During the Republican era, the Judicial system consisted of five major courts:
Court cases were generally handled at the primary and appeal stages by three major judges. The cessation stage could also have been deliberated with two or more participant judges, applying the constitution and laws of the Islamic Republic of Afghanistan. [5]
The Taliban purged the judiciary of the republican era, ending the appointment of those with training in modern Republican state legislation. The Amir al-Mu'minin (Supreme Leader) now directly appoints judiciary with the title of Shaykh, Mufti and Maulvi that suggest knowledge of prophetic tradition, Madrassa training and qualification to issue answers in Islamic law according to the Hanafi school. [6]
The Taliban operate a three-tiered court structure: [4]
The Hanafi school or Hanafism is one of the four major schools of Islamic jurisprudence within Sunni Islam. It was established by the 8th-century scholar, jurist, and theologian Abu Hanifa, a follower whose legal views were primarily preserved by his two disciples Abu Yusuf and Muhammad al-Shaybani. As the oldest and most-followed of the four major Sunni schools, it is also called the "school of the people of opinion". Many Hanafis also follow the Maturidi school of theology.
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Sharia means Islamic law based on age-old concepts. Since the early Islamic states of the eighth and ninth centuries, Sharia always existed alongside other normative systems.
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