A Comparative Reappraisal of the Impact of Cultural and Jurisprudential Structures on the Criminal Policy of Iran and Afghanistan: From Punitive Authoritarianism to Restorative Justice

Abstract

The present study aims to conduct a comparative reappraisal of the impact of cultural and jurisprudential structures on the criminal policy of Iran and Afghanistan by analyzing the mechanisms through which culture and Islamic jurisprudence shape the penal policies of the two countries and by elucidating the conditions enabling a transition from authority-centered approaches to justice-oriented and restorative models. The research method is descriptive–analytical and comparative, based on the examination of legal documents, jurisprudential texts, criminological theoretical foundations, and secondary historical and legal sources. The findings indicate that in both countries Islam plays a central role in legitimizing criminal policy; however, the manifestation of this role differs. In Iran, the establishment of Imami (Ja‘fari) jurisprudence and related institutional structures has fostered a more centralized and relatively authoritarian model, whereas in Afghanistan, the combination of Hanafi jurisprudence, tribal custom, and political instability has resulted in a hybrid and fragmented pattern. At the same time, the study demonstrates that Islamic jurisprudence itself contains capacities for a justice-oriented reinterpretation—such as reconciliation, forgiveness, diyah (blood money), and an emphasis on the rehabilitation of offenders—which can be utilized through legislative reform, the strengthening of civil institutions, and the promotion of restorative mechanisms. The overall conclusion is that the realization of restorative justice requires jurisprudential reinterpretation, cultural change, and legal institution-building, so that criminal policy may shift from a purely punitive system toward a hybrid and more humane model.