A few days ago, after the Penal Code of the Islamic Emirate was endorsed by the Amir al-Mu’minin (may Allah preserve him) and published in the Official Gazette, republican figures who fled Afghanistan and secular activists have repeatedly chanted the slogan that the Islamic Emirate has allegedly divided society into classes. They base this claim on provisions of the code in which taʿzīr (discretionary punishment) is categorized according to the “status of the offender,” and where terms such as ashrāf (elite), ashrāf al-ashrāf (elite of the elite), and ʿawām (common people) are used. If this objection is stripped of emotional slogans and examined at the level of text, law, and application, it appears fundamentally incorrect, incomplete, and a deliberate distortion.
First, it must be clarified that the principles of the Islamic system define the offender’s status for the purpose of determining taʿzīr in accordance with Islamic Sharia and Hanafi jurisprudence—not for determining the punishment itself. In fact, throughout the entire code you will not find a single provision in which a harsher punishment, as legislated by the leadership, is prescribed for an ordinary person than for a scholar, a mufti, a doctor, or an engineer. This is a crucial distinction that opponents either fail to understand or deliberately ignore in order to distort the truth.
In jurisprudential terminology, identifying the crime, recognizing the condition of the offender, and assessing the social impact of the offense constitute one stage, while the punishment is the final outcome applied to the criminal. In the code, whether a person is a scholar or illiterate, a doctor or a laborer, a village elder or an ordinary citizen, once the crime is proven, the punishment is the same—unchangeable, unconditional, and not dependent on the individual.
In the provisions that explain taʿzīr based on the status of the offender, the intent is not to grant special or lenient punishment to the elite. Rather, the intent is to determine how the crime should be identified, the extent of its corruption, and the degree of its impact on public trust in society.
When it comes to punishment, in some cases a government employee is assigned a harsher penalty than others. For example, Article Thirty-Eight, paragraph six, of the code states, “If the perpetrator of the crimes listed in paragraphs (1) and (2) of this clause is an employee of state institutions, six months’ imprisonment shall be added to the original term of imprisonment.”
If this code were truly based on class division, differences would exist in punishments: a scholar would receive a lighter sentence, an ordinary person a harsher one; or the elite would be granted exemptions while the common people would be subjected to punishment. But the reality is that the code has completely closed this door. Punishment is neither at the judge’s discretion, nor dependent on the offender’s name, nor tied to social status. This is the equality that other legal systems of the world merely proclaim as a slogan but fail to implement in practice.
By contrast, if we look at the U.S. Federal Criminal Code, both the crime and the punishment are written in a single provision as follows: “shall be punished by imprisonment for up to ten years.” The phrase “up to” is, in reality, the very word that opens the door to class division. It gives the judge the authority to sentence one person to six months in prison for a crime and another to ten years for the same crime. This disparity is essentially class division, where the criminal’s social standing, their lawyer, media pressure, and political connections directly affect the punishment. In other words, there the punishment depends on the person, not on the crime.
Once the phrase “up to” is added to the law, society itself is divided into classes. A person whom the judge views unfavorably may be given ten years’ imprisonment, while someone the judge views favorably may be sentenced to one month for the same crime. Western law has opened this path—the same West and the same America to which these disgraced individuals have fled and from which they ran away. They should examine the criminal laws of those countries: if they find a single, fixed punishment for a crime, they deserve a reward; rather, in every provision they will find the words “up to.”
Another major advantage of the Islamic system’s code over Western criminal laws is that, in Western systems, a judge may obligate a criminal to pay money to the state in exchange for the crime and then release them. For example:
(a) In General. — A defendant who has been found guilty of an offense may be sentenced to pay a fine.
(b) Fines for Individuals.—Except as provided in subsection (e)…for a felony, not more than $250,000. (18 U.S.C. § 3571)
According to this provision, if a criminal is wealthy, the judge can release them by having them pay money to the government, while another person who lacks money is forced to serve the prescribed punishment and imprisonment until the specified term. By contrast, in the Islamic system’s code, taʿzīr bil-māl (financial punishment by taking money from the offender as punishment) is completely prohibited; it is only permitted through the destruction of property or temporary imprisonment.
If the Islamic Emirate categorizes taʿzīr to determine the offender’s responsibility while keeping punishment equal, why should it be considered class-based? Conversely, if America leaves punishment “up to” a certain limit and in practice differentiates between the wealthy and the poor, is that justice? This difference—and the justice and mercy toward human beings embodied in the system’s code—is visible to everyone except those who do not wish to understand.
Wherever terms such as “ashrāf al-ashrāf,” “ʿawām,” and “khawāṣṣ” are used in the code, they are employed solely according to juristic definitions, and those definitions are quoted verbatim. There is absolutely no difference in the prescribed punishments; scholars and illiterate persons are placed within the same framework. In reality, this breaks down classes rather than creating them—but the blind do not see.
