The Role of Religion in Shaping Patterns of Criminalization and Decriminalization in Islamic Criminal Justice Systems: A Comparative Study of Iran and Afghanistan

Abstract

Religion is one of the most significant factors shaping patterns of criminalization and decriminalization in Islamic criminal justice systems and, through its interaction with each country’s cultural and historical components, leads to the production of distinct criminal policies. Iran and Afghanistan, despite extensive cultural and religious commonalities, have followed divergent paths in regulating their criminal laws. This study, using a descriptive–analytical method grounded in comparative analysis, examines the role of religion in determining the boundaries of criminalization and decriminalization in these two countries. In Iran, the Constitution and the legislative structure are based on Imami (Jaʿfari) jurisprudence, such that Sharia is regarded not merely as a supplementary reference but as the primary source of criminalization and the determination of punishments. This has resulted in jurisprudential coherence within criminal laws and a tendency toward extensive criminalization in moral domains and hudud offenses. In contrast, the Constitution of Afghanistan recognizes Sharia in the form of a negative framework of “non-contradiction with the provisions of Islam” and refers to Hanafi jurisprudence only in the absence of statutory law. This minimalist approach, together with the historical role of tribal custom and cultural diversity, has led to greater flexibility in decriminalization, particularly with respect to social and moral offenses. The findings indicate that religion plays a decisive role in legitimizing criminal law in both countries; however, differences in the type of jurisprudence, political structure, the status of custom, and the degree of legislative dependence on Sharia have caused Iran’s pattern of criminalization to assume a stronger religious and normative orientation, while Afghanistan follows a hybrid model combining Sharia, modern statutory law, and customary norms. Consequently, although religion provides a shared normative framework in both countries, the intensity and scope of criminalization and the extent of acceptance of decriminalization are contingent upon the specific religious–cultural conditions of each society.