The Taliban Legal System and the 2026 Criminal Procedural Regulations

When the Taliban resumed power in Afghanistan in August 2021, a central question emerged among Afghans and the international community: How would the Taliban govern the country? What form of governance and legal system would they establish? In the initial days following their takeover, Taliban officials declared that they would strictly follow Sharīʿa (Islamic law) (Shariah, 1997) and that governance would be conducted through an Ulema Council (Shura), similar to their first period in power, with the Amir serving as the Supreme Leader (Lonas, August 19, 2021).

Four years later, the Taliban legal system still strictly relies on the decrees issued by the Taliban Amir. These decrees are typically published in the DFA, Official Gazette of the Ministry of Justice. According to United Nations reporting, more than 100 of these decrees have directly restricted the rights of women and girls (UN Women, 2025), revealing the deeply gendered nature of the Taliban’s legal and political project.

In August 2024, the Taliban de facto authorities issued the Law on the Promotion of Virtue and the Prevention of Vice, consolidating prior decrees, policies, and edicts. This law significantly intensified restrictions on the rights of Afghan women and girls while granting broad authority to the so-called Promotion of Virtue and Prevention of Vice (PVPV) police to regulate the personal lives of all Afghan citizens, including men, women, and children. (Islamic Emirate of Afghanistan, n.d.) 

On January 7, 2026, the Taliban enacted another legal instrument through a decree issued by the Supreme Leader, the Criminal Procedural Regulations for Courts (د محاکمو جزایي اصولنامه), which sets out the framework of their criminal justice system.

Although numerous reports and analyses have examined this regulation, a consistent pattern emerges. Like earlier Taliban laws and edicts, the regulation functions primarily as a mechanism of control and intimidation, disproportionately targeting women. It also violates one of the most fundamental principles of law, equality before the law. Article 9 explicitly divides Afghan society into hierarchical categories based on social status, including religious scholars (ulema), elites such as tribal leaders and merchants (ashraf), the middle class, and the so-called lower class, assigning different forms and levels of punishment accordingly. This structure grants partial or full impunity to privileged groups while subjecting marginalized individuals to harsher penalties.

Such stratification stands in direct contradiction to Islamic legal principles, which emphasize equality (musāwāt), justice (‘adl), and human dignity (karāmah). Classical Islamic jurisprudence rejects preferential treatment based on social rank, and Islamic legal theory holds that all individuals must be treated equally before the law. As Kamali (2008) notes, Islamic justice requires courts to treat all persons without discrimination, recognizing every human being as Allah’s representative (khalīfa) on earth.

The regulation further violates foundational principles of criminal law, including legality, individual criminal responsibility, and proportionality (Duff, 2011).

Before turning to these principles, it is important to briefly look at Afghanistan’s legal history. Over the past century, the legal system, across monarchical, republican, and post-2001 periods, has consistently reflected core foundations of criminal law, including legality, individual personal responsibility, and proportionality of punishment. From early codification efforts in the twentieth century to the criminal codes and procedural laws adopted during the constitutional era, Afghan law has drawn on both Islamic jurisprudence and comparative legal traditions to establish a structured and principled criminal justice system. The 2026 Criminal Procedural Regulations represent a clear departure from this historical legal framework. Instead of building on Afghanistan’s established legal foundations, its laws and regulations abandon long-standing criminal law principles and replace them with a discretionary and hierarchical framework that concentrates punitive authority, weakens judicial safeguards, and undermines legal justice. The following sections examine some of the most serious departures from these foundational principles.

Principle of Legality and Due Process

Article 4(6) provides that any Muslim who witnesses a person committing a crime against Allah has the authority to punish the offender. This provision fundamentally undermines the principle of legality. Islamic legal scholars have long emphasized that the purpose of punishments, whether Hudud or discretionary punishment “Tazi’r,” is reform and repentance, and that their application requires strict procedural safeguards. When punishment is imposed by individuals rather than through judicial institutions, both reform and repentance are undermined, and due process becomes meaningless.

Due process in criminal justice serves to restrain abuses of authority, guarantee procedural fairness, and guard against arbitrary or unjust convictions. In places such as Afghanistan, where legal institutions are fragile and the rule of law is weak, delegating punitive authority to private individuals enables misuse, encourages unfounded accusations, and facilitates the resolution of personal or political disputes through fear and violence. Sharīʿa itself affirms the protection of life, honor, and liberty by requiring lawful proof, presuming original non-liability, and innocence. An unverified allegation cannot displace legal certainty. These protections collapse when punishment is removed from judicial oversight and entrusted to private actors.

Article 4(3) further authorizes the punishment of children for purposes of reform without specifying an age threshold. This ambiguity effectively subjects all children to punitive measures, in violation of basic human rights standards and principles of child protection.

Article 4(5) compounds these concerns by granting husbands the authority to punish their wives, transferring the state’s responsibility for investigation and adjudication to private actors. This not only places women in a legally subordinate and degrading position within marriage, undermining their dignity, agency, and autonomy, but also erodes the state’s obligation to uphold due process and impartial justice.

Principle of Proportionality

The regulation also violates the principle of proportionality. Article 32 provides that if a husband beats his wife and the assault results in fractures, bruising, or visible injuries, the punishment is limited to 15 days of imprisonment. Such a penalty is manifestly disproportionate, particularly in cases where the violence causes permanent injury or long-term harm and falls far below what would be expected in any coherent criminal justice system.

Principle of Individual Criminal Responsibility

Finally, the regulation undermines the principle of individual criminal responsibility. Under general criminal law, only the offender may be held liable for an offense. Article 34, however, criminalizes not only a wife who leaves the marital home without her husband’s permission, but also family members who fail to prevent or reverse her actions, subjecting them to imprisonment of up to three months. Article 4(13) further departs from this principle by stating that while ḥudūd punishments cannot be inherited, discretionary punishments (taʿzīr) may be inherited, an approach fundamentally incompatible with individual liability.

Conclusion

More than four years after returning to power, the Taliban have failed to establish a coherent legal system grounded either in Islamic principles of justice or in modern legal norms centered on human dignity. Instead, they have constructed an arbitrary, decree-based legal order that systematically disregards Afghanistan’s international human rights obligations and disproportionately targets women. Through laws and regulations that subordinate women to family, community, and state control, the Taliban reduce women to objects of governance rather than rights-bearing individuals. When implemented as state policy, this framework amounts to gender-based persecution and contributes to conditions that may constitute gender apartheid under international law.

At the same time, the Taliban have neither implemented a genuine Sharīʿa-based system grounded in equality, justice, reform, and repentance, nor established a modern legal order capable of fostering legitimacy, stability, or sustainable governance. This failure underscores the regime’s inability to regulate Afghan society through law in a manner consistent with either Islamic legal ethics or international legal standards, further undermining prospects for domestic legitimacy and meaningful international engagement.