THE announcement by the Afghan Taliban regime of a new penal code to govern their country’s criminal justice system should concern not only the Afghans but anyone who is attentive to the relationship between law, power and social order. What has emerged from Afghanistan through official statements and media reporting is not a coherent legal framework aimed at justice or social stability. Rather, it reflects a deliberate regression towards pre-modern norms that institutionalise inequality, undermine accountability and legitimise coercion under the guise of religious authority.
A penal code is intended to be the backbone of the legal system. As such, it defines crimes and prescribes punishments. But most importantly, it signals who is equal before the law. Against that measure, the proposed framework fails at the foundational level.
A most disturbing feature of the code is the apparent exemption given to religious scholars and the ruling elites from prosecution, or their insulation from ordinary judicial processes. Not only is this kind of selectivity incompatible with the principles of modern constitutionalism, it also contradicts the very Islamic legal tradition that the Afghan Taliban claim to uphold. Classical Islamic jurisprudence is rooted in the principle that no individual, regardless of his or her status or piety, is above the law. The insistence of the Prophet Muhammad (PBUH) on equality before justice is a well-established axiom across Islamic legal schools.
By putting clerical authorities beyond legal scrutiny, the Taliban are not reviving religious law but are transforming it into an instrument of clerical absolutism. Historically, legal systems that fuse unchecked religious authority with political power have tended towards arbitrariness and abuse. The law is no longer a mechanism of justice; instead, it turns into a means of enforcing obedience.
The Afghan Taliban’s new penal code reveals a troubling philosophy of governance.
What is just as troubling is the reported recognition of social categories that resemble ‘slaves’ or, in other words, permanently subordinate classes that are subject to differential punishment. This kind of stratification goes against the fundamental principles of justice across legal traditions. While historical Islamic societies grappled with the legacy of slavery, Islamic jurisprudence evolved mechanisms which were aimed at restriction and gradual elimination — and not the creation of new, legally entrenched underclasses.
From a sociological perspective, penal systems that codify inequality generate deep and lasting instability. They erode social cohesion, delegitimise authority, and foster resentment. No society in the modern world has achieved stability by formally declaring that some people are less protected by the law than others.
Perhaps the most alarming element of the Taliban’s penal framework is the declaration that nine-year-old girls are legally women eligible for marriage. While child marriage has existed in Afghanistan’s past (as it has in many traditional societies) the decision to codify it into a contemporary legal system is not cultural inevitability; it is political choice.
Scholarly discourse in Islam does not equate biological age with moral or legal adulthood. Classical jurists emphasised rushd (intellectual maturity), welfare (maslaha) and consent as essential components of marriage. Contemporary Muslim scholarship has overwhelmingly recognised that child marriage is harmful and not aligned with religious ethics. The Taliban’s interpretation represents a selective reading of tradition, stripped of its moral safeguards.
The economic context matters. In many parts of Afghanistan, the practice of walwar (whereby families receive money in exchange for marrying off daughters) has long commodified girls. Afghan reformers, clerics and civil society actors have criticised this practice for decades. Enshrining it in law does not preserve culture; it perpetuates exploitation and poverty while entrenching gender-based violence.
Beyond individual provisions, the broader structure of the penal code reveals a troubling philosophy of governance. Women and girls are reduced to legal dependents without agency, while male guardians, clerics and enforcers are granted expansive authority. This is not merely a gender issue; it is a systemic one. Societies that deny half their population legal autonomy inevitably suffer economic stagnation, social decay and moral erosion.
Comparative legal research has demonstrated consistently that legal systems which are exclusionary correspond with greater rates of violence, poverty and institutional collapse. Afghanistan has already been devastated by decades of war and isolation, and it cannot absorb the long-term consequences of such regression.
Seen in this context, the penal system appears to be designed less to deliver justice than to discipline society by employing fear and hierarchy. Discretionary power replaces legal protections and judicial independence submits to clerical decree. Accountability flows downward; and not in the opposite direction.
If we compare the situation to that in other countries, it is clear that even states that incorporate elements of Islamic criminal law do so within a framework that includes procedural safeguards, evidentiary standards and appellate mechanisms. The Taliban’s approach is different to this, not because it is ‘more Islamic’, but because it is less legal.
Just as stark are the international implications. A penal code that basically institutionalises discrimination, child marriage and immunity for the elite will only isolate Afghanistan further, complicating humanitarian engagement and deepening sanctions-related pressures. The highest cost will not be borne by the international community but by ordinary Afghans who are trapped in a system that offers them neither justice nor recourse.
How Afghan society responds is not certain. Some may endure in silence; others may resist quietly or choose pragmatism. History suggests, however, that legal systems that are built on coercion instead of consent rarely endure. Obedience imposed through fear is brittle, and legitimacy without justice is temporary.
The Taliban’s penal code is not merely conservative or traditional. It is structurally unjust and intellectually inconsistent, selectively invoking religion to consolidate power while discarding the ethical foundations of Islamic jurisprudence itself. A legal system that sanctifies inequality, commodifies children and shields elites from accountability cannot build a stable society. It can only deepen Afghanistan’s isolation, and prolong the suffering of its people.
The writer is a former ambassador of Pakistan in Iran and the UAE. He is a former Special Representative of Pakistan for Afghanistan and currently serves as a Senior Research Fellow at the Islamabad Policy Research Institute.
Published in Dawn, January 29th, 2026
