e Indonesian Journal of International & Comparative Law
ISSN: 2338-7602; E-ISSN: 2338-770X
http://www.ijil.org
© 2020 e Institute for Migrant Rights Press
thE Position and rolE of thE
dEPartmEnt of ifta in thE
formation of thE afghan lEgal
systEm
Suhaib Hasani
Herat University School of Law and Political Science, Afghanistan
E-mail: hasanisuhaib@yahoo.com
It is a common wisdom that the Afghan legal system is highly inuenced by
Islamic law and the sharia’, and there is abundance of academic research in this
regard. However, the existing research focuses less on the institutions that under-
stand sharia in practice and gives it eective meaning in the legal and judicial
processes in Afghanistan. One such body is the Department of Ia’ in the Afghan
Supreme Court which has received no scholarly attention at all although it plays
the most important role in implementing and interpreting the sharia in practice.
Judicial decisions that require the application and interpretation of the sharia
cannot be resolved without the decision and opinion of the Department of Ia.
In order to ll this gap in the research on the Afghan legal system and the judicial
realization of sharia or qh, in this paper I explore the position of the Depart-
ment of Ia in the legal system of Afghanistan. I also discuss the role that this
institution has historically played in the formation and evolution of the Afghan
legal and judicial systems. In modern day Afghanistan, the Department of Ia
has been formalized and forms an integral part of the country’s judicial system.
erefore, I explore the duties, authorities and structure of this institution in
order to paint a complete picture of the Department of Ia.
Keywords: Law of the Sea, Law Enforcement, International Law, International Coop-
eration, International Criminal Law.
VII Indonesian Journal of International & Comparative Law 385-404 (July 2020)
386
Hasani
INTRODUCTION
Islam and its shariaʿ have had a central position in Afghanistan’s his-
tory and played a strong role in the formation of national identity in
Afghanistan.1 e legal system of Afghanistan has thus been strongly
inuenced by Islam, its shariaʿ and qh. Until the 1880s, before the
foundations of a modern legal system were laid down in Afghanistan,
it was Islam and its shariaʿ as understood by local tribes that regulated
day-to-day aairs in Afghanistan.2 ose who administered justice and
resolved legal disputes were religious clerics and were exclusive trained
in Islamic law and served as the independent judges in the land.3 Aer
the emergence of a fairly modern legal system in Afghanistan in the
1920s, Islam and its shariaʿ continued to play an important part in the
legal and judicial systems of Afghanistan.
As a result, almost all of Afghanistan’s constitutions declared Islam
the ocial religion of the state; required the head of state to be the
follower of Islam and stated that no law in Afghanistan can contradict
the basics of Islam and the principles of the shariaʿ.4 As legal codes and
statutes began to be draed, religious scholars, who used to administer
justice under the Islamic shariaʿ, were replaced by state appointed
1. See generally A’ I: F C T
(Nile Green ed., 2016); Asger Cristensen, When Muslim Identity has Dierent
Meanings: Religion and Politics in Contemporary Afghanistan in I:
S S (Klaus Ferdinand and Mehdi Mozaari eds., 1988); Jon
Anderson, How Afghans Dene emselves in Relation to Islam in R
R A: A P
(Mohammad Nazif Shahrani and Robert Caneld eds., 1984); see also Donald
Wilber, e Structure and Position of Islam in Afghanistan 6 M E J. 41
(1952).
2. See Wilber, supra note 1, at 42.
3. See Ashraf Ghani, Islam and State-Building in a Tribal Society Afghanistan:
1880-1901, 12 M A S. 269 (1978).
4. For a complete discussion of the role of Islam and the shariaʿ in the Afghan
constitutions, see M H K, L A:
A S C, M L J
(1985); see also Shamshad Pasarlay, Islam and the shariaʿ in the 1993 Mujahideen
– Dra Constitution of the Islamic State of Afghanistan: A Comparative
Perspective 3 T I. J. I’. C. L. 183 (2016).