A Juridical and Legal Analysis of the Principle of Legality of Crimes and Punishments with Emphasis on Afghan Law

Abstract

The principle of legality of crimes and punishments (Nullum crimen, nulla poena sine lege) is considered one of the most fundamental pillars of contemporary criminal law, playing a vital role in guaranteeing criminal justice, safeguarding individual liberties, and ensuring legal security. Based on this principle, no act or omission is subject to prosecution or punishment unless it has been explicitly criminalized and penalized by clear statutory provisions prior to its commission. The significance of this principle is not only confined to Afghan legislative instruments—such as the Constitution and the Penal Code—but is also deeply rooted in the foundations of Islamic jurisprudence. It is recognized and emphasized within both Imami and Sunni schools, particularly the Hanafi school of thought. Adopting a descriptive-analytical approach based on jurisprudential and legal texts, this article seeks to examine the status of the aforementioned principle within the Afghan legal system and explore its jurisprudential underpinnings in the two mentioned schools. The findings of this research indicate that maxims such as "The Reprehensibility of Punishment without Prior Notification" (Qubh al-Iqab bila Bayan), "The Original Permissibility of Things" (Al-Asl fi al-Ashya' al-Ibahah), and the jurisprudential rule of "No Crime or Punishment without a Text" (La Jarimah wa la 'Uqubah illa bi-Nass) are in full alignment with modern criminal law doctrines, especially within Hanafi jurisprudence. These principles provide a legitimate, rational, and acceptable basis for criminal legislation in Afghanistan.