With the outbreak of war against the Soviet inva-
sion of Afghanistan in the 1980s, state institutions,
including the judiciary, gradually disintegrated.
With it, the practice of family law reverted to the
rulings of individual qàdìs based on their own
interpretation of the Sharì≠a.
With the coming to power of the Taliban in 1996,
a revived attempt was made to implement the law
uniformly throughout Afghanistan. The Taliban’s
understanding of the Sharì≠a was far from the lib-
eral interpretations that had gradually entered the
field of family law in Afghanistan before 1978. The
Taliban did, however, issue two decrees favorable
to women. In September 1998 the Taliban banned
the tribal practice of giving a woman in marriage in
the settlement of blood feuds, and prohibited the
compulsory marriage of a widow to her deceased
husband’s next of kin.
Throughout all legal reforms, laws on inheri-
tance have remained unchanged and are based on
the Sharì≠a. In practice, however, women are often
denied their Islamic share of inheritance.
After the fall of the Taliban in December 2001, a
presidential decree declared the 1977 family law as
valid and applicable.
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Fatwa-i shar≠ìsutr wa-™ijàb, Kabul, 27 August 1993.
Sultan Mohammad, The constitution and law of Afghan-
istan, London 1900.
F. M. Kàtib, Siràj al-tavàrikh, 3 vols., Kabul 1331–3/
1913–15.
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text of Afghan constitutions), Qum, Iran 1995.
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August 1925.
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R. Farhàdà(ed.), Maqalàt-i Ma™mùd Tarzìdàr siràj al-
akhbàr-i Afghàniyya, Kabul 1977.
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Helena Malikyararab states 459Arab StatesThe premodern era
In order to appreciate the nature of family law
reform in the modern era, a cursory reference to
rules on the family in the premodern era under
Islamic jurisprudence has to be made. The “fam-
ily,” as a unit revolving around the acts of marriage
and reproduction, was unknown to premodern
Muslim jurists. Rather, they saw marriage as one of
several equally important legal relationships that
formed in their totality the web of the premodern
Islamic medieval household. In this legal house-
hold, the man was the financial provider, the head,
and the guardian of the household, while the wife
(or wives) was the provider of sexual pleasure (obe-
dience) in return for her right to maintenance.
Other members of the household (concubines,
slaves, children, relatives) also owed the male
provider different kinds and degrees of obedience
in return for their right to maintenance. The
provider had the power to discipline those toward
whom he had the duty of maintenance. An impor-
tant background rule that has survived until mod-
ern times is, however, that free women owned
property independently from their husbands and
had complete freedom to dispense with and admin-
ister this property. They had no duty of mainte-
nance to anybody.
The schools of law in the Sunnìworld (Màlikì,
Shàfi≠ì, £anafì, £anbalì) dominated the legal
system in the premodern era, in which each school
had its own set of jurists who wrote treatises of
jurisprudence on various subjects ranging from
contract, tort, and crime to marriage, concubinage,
and divorce. Each school had a class of muftis who
provided legal opinions to the school’s constituents.
Qà∂ìs (judges) were affiliated with these schools and
interpreted the treatises of their school’s main
jurists in adjudicating cases. The schools were rela-
tively autonomous and free from the intervention
of the ruler in the administration of law.Transformation of the legal
system in the early modern era
European penetration of the Ottoman Empire
(nineteenth century) succeeded by European colo-
nialism (nineteenth and twentieth centuries) trig-
gered a process of substituting the doctrines of the
schools with European legal transplants. This process
proved unstoppable, especially as it was adopted by
local Muslim elites, who saw it as part of an overall
modernizing/Europeanizing effort that they them-
selves embraced and shepherded. The transforma-
tion was mediated through the capitulatory regime