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Taliban 'Tribal Version': Shari'a Is Not The Same Everywhere

The dead body of a man accused of kidnapping hangs from a crane in the western Afghan city of Herat on September 25.

When the Taliban-led government says it is implementing Islamic law in Afghanistan, it is referring to its own strict Sunni interpretation of Shari'a.

There is no universal Islamic law, because Shari'a is open to different interpretations among the five main schools of Islamic jurisprudence: four Sunni schools of thought and a Shi'ite school.

Thus the Taliban's version of Islamic law differs from Shari'a in other predominantly Muslim countries, including other mostly Sunni countries.

In fact, many scholars insist Western media is overly narrow when it defines Shari'a as "Islamic law."

"Shari'a includes large areas of personal conduct not generally covered by legal rules in many societies," says Nathan Brown, a professor of political science at George Washington University. "A vaguer but more accurate translation might be 'the Islamic way of doing things.'"

The Taliban's justification for its hard-line Islamic system is rooted in the 19th-century Deobandi movement of British Colonial India -- a prominent strain among Islamists in modern-day Pakistan and Afghanistan that is based on the Sunni Hanafi school of jurisprudence.

Haroun Rahimi, a self-exiled law professor from the Kabul-based American University of Afghanistan, notes that Taliban Shari'a is also influenced by local traditions in Afghanistan and the tribal regions of Pakistan.

"The Taliban often have been very good at understanding and trying to align with local tribal dynamics rather than working against them," Rahimi tells RFE/RL. "So the Taliban's enforcement of their criminal laws and their resolution of private disputes are a mixture of the Hanafi school and also of tribal codes, or a local cultural understanding."

"They subscribe to the Hanafi school of jurisprudence as it is elaborated within the curriculum of the Deobandi madrasahs in Pakistan -- where many of the Taliban judges received some of their training, as much training as they got," Rahimi explains. "Sometimes they received very little training."

Compared to the justice systems in most predominantly Muslim countries, Rahimi says Taliban courts have shown a relative lack of restraint when ordering public executions, amputations, and floggings.

A man accused of robbery sits next to Taliban members while in custody at a police station in Kabul on September 30.
A man accused of robbery sits next to Taliban members while in custody at a police station in Kabul on September 30.

A case in point is the Islamic tradition of "qisas" -- "an eye for an eye" or "a just retaliation" -- for perceived "crimes against man," he says.

Under qisas, a convicted murderer is publicly executed at the request of the murder victim's relatives. A victim's relatives may choose to settle instead for "blood money" -- a retribution payment from the killer.

The legal systems of Saudi Arabia, Iran, Pakistan, the United Arab Emirates, Qatar, and some parts of Nigeria all provide for "just retaliation," with varying degrees of public display.

But public executions in such cases have been more common, and presented with more fanfare, under Taliban rule dating back to the mid-1990s.

Rahimi says that "given the unsophisticated and uncritical reading of Islamic texts by the Taliban," he doesn't expect Taliban judges to engage in "sophisticated contextualization" of Koranic verses about "just retaliation" the way the courts in most other Muslim countries do.

Another case in point is the "hudud" punishment for what are seen as "crimes against God" -- such as public flogging for adultery and drinking alcohol or amputation for highway robbery and some types of theft.

These punishments are fixed and mandated by verses in the Koran.

But Rahimi says the high standard of evidence required in hudud cases means courts in most Muslim countries rarely issue such punishments. "Courts in those countries have stipulated that hudud punishments should be avoided if there is the slightest doubt or ambiguity in a case," he says.

By comparison, Taliban courts do not allow for due process and have, in the past, ordered "numerous public executions, amputations, and floggings at sports stadiums," Rahimi says.

Afghanistan's former Women's Affairs Ministry has been replaced by the Taliban's dreaded Ministry of Vice and Virtue, which will oversee enforcement of hard-line Islamic rules.
Afghanistan's former Women's Affairs Ministry has been replaced by the Taliban's dreaded Ministry of Vice and Virtue, which will oversee enforcement of hard-line Islamic rules.

Views on women’s participation in public life also vary considerably between the Taliban’s interpretation of Shari'a and mainstream attitudes in other mostly Muslim countries.

Afghanistan's Taliban regime from 1996 to 2001 banned women's education and required women to have a male family member as a chaperone whenever going outside their homes.

By comparison, women have recently served as heads of state in Pakistan, Indonesia, Turkey, Bangladesh, Kyrgyzstan, Kosovo, Tunisia, Tanzania, and Mali.

Bager Moin, the former head of the BBC's Persian service and founder of the London-based Jadid Online journalism website, says the Taliban's treatment of women is out of step with "what is accepted by the majority of Muslim scholars as what is Shari'a law."

"The Taliban's claim of acting according to Shari'a law does not mean it is Shari'a law,” Moin says. "It is their tribal version of Shari'a law and it should be reported as such."

Moin concludes that the Taliban is failing to "practice the Prophet Muhammad's tradition on women's education" when the group prevents women from going to school.

"Excluding women from education has nothing to do with what we know as Islamic tradition," Moin argues. "It is accepted by all Muslim scholars that the Prophet has said, 'Seeking knowledge is the duty of all Muslims,' whether they are men or women."

At Darul Uloom Deoband, the Islamic school in northern India that spawned the Deobandi movement, 82-year-old principal Maulana Syed Arshad Madani says he supports the Taliban's attempts to segregate men and women in order to "avoid temptation."

A Taliban fighter stands guard as Muslims offer Friday noon prayers at the Aba Saleh Almahdi Mosque in Kabul on October 1.
A Taliban fighter stands guard as Muslims offer Friday noon prayers at the Aba Saleh Almahdi Mosque in Kabul on October 1.

But Madani, who is adamant that his school has no current ties to the Taliban, told RFE/RL recently the Taliban should not ban women from receiving an education. "If the [Taliban-led] Afghan government can enforce [segregated education], it will mean the door to education for girls has opened," Madani said.

In addition to Taliban-ruled Afghanistan, key states claiming to base their government on Islamic law are Sunni-majority Saudi Arabia and Shi'a-majority Iran.

Such Shari'a-based regimes have raised concerns from the European Court of Human Rights -- particularly on matters of criminal law and criminal procedure, rules on the legal status of women, and the way that regimes intervene "in all spheres of private and public life in accordance with religious precepts."

There is a more complex relationship between Islamic law, tribal customary law, and statutory legal codes in other countries where Islam is the state religion, such as Pakistan and Egypt, or in secular Muslim-majority states like Turkey.

Sources Of Islamic Law

There are four main sources of Shari'a law.

The preeminent source for all schools of Islamic jurisprudence is the Koran -- the holy book that all Muslims believe contains God's direct revelations to the Prophet Muhammad.

Another primary "revealed" source of Islamic law is known as the Sunnah -- the teachings and practices of Muhammad as described in the text of the Hadith.

There also are "nonrevealed sources" of Islamic law that are derived from human reasoning.

Each school of Islamic jurisprudence ascribes different levels of importance to them.

One nonrevealed source is known as "qiyas," an independent interpretation of judicial principles that is made by Muslim jurists. These are derived from a process of analogical reasoning, known as "ijtihad," that is based on a qualified understanding of the Koran and the Hadith.

Another nonrevealed source of Islamic law is the "ijma," a consensus of opinion among Islamic scholars or the Muslim community.

Schools Of Thought

The main schools of Islamic jurisprudence are based on different "human understandings" -- or "fiqh" in Arabic -- that emerged about the Koran and the Hadith over the centuries following Muhammad's death.

No school of jurisprudence is exclusive to any region. Nevertheless, each has come to be more dominant in different parts of the world.

John Mohammad Butt, an Islamic scholar and former BBC broadcaster who is the only Westerner to graduate from Darul Uloom Deoband, says the differences between the four Sunni schools "relate to the ancillary aspects of religion rather than the fundamental aspects of the practice of one's faith."

"It's very minor things, and they'll always say that all the four Sunni schools of thought are equally valid and are equally sound," Butt tells RFE/RL. "It's just a difference of interpretation on the part of the imams, and there is absolutely no animosity on the part of any of the schools of thought."

The Hanafi school dominates South Asia and Central Asia. It is followed by about one-third of the world’s Muslims, making it the school with the most adherents.

Hanafi fiqh accepts the discretion of jurists, as well as traditional community customs, as a valid basis of Islamic law.

Thus, the Taliban's interpretation of Shari'a -- with its influences from local tribal customs in Afghanistan and Pakistan -- is just one variation of Hanafi.

A member of the Taliban and onlookers stand at the site of the execution of three men in Ghazni Province in 2015.
A member of the Taliban and onlookers stand at the site of the execution of three men in Ghazni Province in 2015.

The Maliki fiqh is predominant in North Africa and West Africa.

In medieval times, it also was found in parts of Europe under Islamic rule -- such as the former Islamic states in Spain and Portugal and in the Emirate of Sicily.

The Maliki tradition includes not only what was recorded in the text of Hadith as a valid source, but also key legal rulings in the early history of Islam.

Like Hanafi, the Maliki school accepts jurist discretion and community customs as a source of Islamic law. Unlike other schools, Maliki followers also view the consensus of the people of Medina as a valid source of Islamic law.

Shafi'i fiqh is common in East Africa and Southeast Asia as well as Chechnya and Ingushetia in the Caucasus.

The Shafi'i school does not consider the judicial rulings of legal scholars to be an acceptable source of Islamic law because they amount to "human legislation."

Hanbali is the smallest of the four Sunni schools. A strict traditionalist Sunni school, it is found chiefly in Saudi Arabia and Qatar, where it is the official fiqh.

There are also large groups of Hanbali followers in the United Arab Emirates, Bahrain, Syria, Oman, and Yemen -- as well as among nomadic Bedouin tribes in Iraq and Jordan.

The Salafi or Wahhabi sect, a strict orthodox Islamic revivalist movement of Sunni Islam whose followers included Al-Qaeda founder Osama bin Laden, first emerged in the 18th century as a reformation of the Hanbali school.

Ja'fari is the main school of thought of Shi'ite Islam. It is enshrined in the constitution of Iran.

The Ja'fari school differs from all four main Sunni schools in its reliance on what is known as "ijtihad," the independent reasoning of jurists to answer a legal question.

In practical terms, Ja'fari also differs from Sunni schools on issues of inheritance, religious taxes, commerce, personal status, and "mut'a," a practice of temporary marriage predating Islam that is allowed so long as both parties agree in advance, without duress, to the length of their partnership.

Written and reported by Ron Synovitz with reporting by Abubakar Siddique