Since the Taliban's takeover of power in 2021, the Afghan government has undertaken a complete overhaul of the justice sector in Afghanistan, implementing what it considers to be the Islamic system of justice. The existing evidence suggests that the emerging Taliban justice system is likely to prioritise swift corporal punishments over incarceration, especially with regard to women. In this, the Taliban administration claims to hark back to pre-modern traditions. In reality, the system that it is building continues to retain features associated with modern incarceration, including coercion and cruelty, with punishments often meted out to peaceful protesters opposing the Taliban government, many of them women.
Before the 20th century, Afghan rulers only employed imprisonment unsystematically and infrequently, detaining their enemies in ad hoc holding locations either indefinitely or until they were put to death. Islamic jurisprudence or Shari'ah, which was largely autonomous from the ruler, facilitated and legitimised communal self-governance, save for the enemies of the ruler. Those who transgressed the legal and ethical norms of the community could receive punishments ranging from harsh words to more severe penalties. The primary function of such punishment was psycho-ethical, because what merited punishment was a transgression against a divinely ordained way of communal life and not a mere violation of the command of the state. The punishment was primarily administered against the body of the wrongdoer publicly and swiftly, to allow the punished individual to return to the right path and to assure the community that its ethical norms remained secure.
The philosopher and historian Michel Foucault has convincingly argued that incarceration as the primary mode of punishment emerged concomitantly with the modern state, starting as a technique of "governmentality" in 18th-century Europe. The scholar Wael Hallaq has expanded Foucault's critique, arguing that the modern project – erected on the two pillars of capitalism and liberal democracy – is fundamentally about fashioning a new subjectivity, one that aims to make an ideal subject of the modern state. According to Hallaq, the raison d'etre of all modern legal institutions – including the modern justice system, where incarceration is the dominant mode of discipline – is to implement this subjectivity-making modern project. Pre-modern political communities embedded in pre-modern traditions – including many originating and thriving in Southasia – did not conceive of a project of re-making their subjects and therefore did not develop mass incarceration as the primary technology of their justice system.
In Afghanistan, a country deeply embedded in the Muslim tradition, incarceration did not become the primary form of punishment until Afghan nationalists and Afghan communists in the second half of the twentieth century undertook a process of re-making Afghan subjects into, respectively, a citizens of a nation-state or communist revolutionaries.