Legal Issues

Islamic law, also called Sharia because it is derived from the Arabic word Shariah meaning the way or the path. Islamic law is an elaborate collection of decrees governing civil justice as well as criminal justice and statutes regulating the conduct of every individual in an Islamic community. Islamic law is an intricate code of individual and community conduct that has its origin in a rich cultural, intellectual and religious tradition. Islamic law is a generalization of the opinion of Muslim followers from all over the world over generations, based on cultural evolution and religious literature that is so extensive that is why Islamic law has not been drafted or authorized by any single establishment or entity (Vogel, 2000).

In the beginning, the early Muslim communities were more concerned with the pragmatic application of the Islamic faith, the relationship between religion and the exertion of authority that with the theoretical bit. It was the jurist Muhammad ibn Idris who wrote down in his book Al-Risala the basic principles that need be followed while administering jurisprudence according to the Islamic faith. Much later in the 19th century, there was a need, due to emerging challenges in a modern world, for Islamic law to re-invent itself. Many nations in the Muslim world had been colonized by western powers the global community was on a transition from the agricultural system to the industrial system. The global community was undergoing a lot of changes as new ideas, opinions and beliefs emerged (Weiss, 2002). Consequently, even though Islamic scholarship remained the major force guiding the lives of Muslims culturally, religiously and politically, there emerged sharp divisions on how to best react to these changes while still upholding the relevance and significance of the Muslim faith. The secularists hold that religion and state should be separated the traditionalists believe that traditional legal views should be considered while defining the law of the state and the reformers advocate for a more liberalized approach whereby new Islamic theories are used in the formulation of modernized law of the state according to Islamic teachings.

In Afghanistan, Islamic law was entrenched under the Taliban regime and was first founded on the denouncement of Islamic fundamentalism characterizing the medieval form of Islamic law and the current government of President Hamid Karzai continues to implement it. The people of Afghanistan favor the existence of an Islamic state and there is little indication that any time I the foreseeable future that there could be a purely secular system defining the penal code and criminal proceedings.

Since Afghanistan is still emerging from the failed states status, its central government does not have an absolute monopoly in terms of dictating the legal order of the day. Long stints under civil law have weakened the constitutional and legal order in Afghanistan, and therefore her courts only apply Islamic law and not the provisions of the constitution (Aisa, 2006).

The judiciary in Afghanistan is hierarchically composed of in descending order, with the Supreme Court, Courts of Appeal and at the bottom, Primary courts. In most cases due to remoteness in some parts of Afghanistan, traveling courts are established with the authorization of the President of the Islamic republic. The judiciary is constitutionally empowered to resolve disputes arising between individuals, groups and businesses, but the application of Islamic la continues to draw sharp reactions.