The Concept of Crime in the Afghan Criminal Justice System: The Paradox between Secular, Tradition and Islamic Law: A Viewpoint of an International Practitioner

Abstract

AbstractIn modern Afghanistan, one major problem with which legal scholars struggle is identification of the concept of crime. While crime is identified and defined in the Afghani Secular Penal Code of 1976, as well in Islamic Law (Shari'ah), jurisprudence of the courts and traditions take precedence in the everyday lives of Afghanis. Court's jurisprudence and the traditional dispute-resolution system are deemed to be a product of Islamic jurisprudence, notwithstanding that, in some cases, they represent an erroneous interpretation and application of Shari'ah as this article will examine. This article focuses on the concept of crime in Islamic law and analyses the court's jurisprudence and traditional system, which are widely applied throughout different parts of Afghanistan, and seeks to identify their relationship between Islamic and secular laws and whether they are consistent with Islamic Shari'ah.