We mentioned last week that the two verses prohibiting intoxicating drinks are among the most stringent forms of prohibition used in the Qur’an. We also said that the Islamic definition of intoxicants includes everything that influences a person’s mind, impeding its efficient functioning which God has granted to that person. Hence, we believe that this text of prohibition applies directly to all types of drugs. We need not resort to any analogy or other methods of deduction or ijtihad to arrive at such a ruling of prohibition of drugs. This clear prohibition in the relevant Qur’anic verses applies to them as it applies to wines and other intoxicants.
Most scholars agree that the punishment of drinking is mandatory, but they differ as to its extent. The Hanafi, Maliki and Hanbali schools of law define it as 80 lashes, while the Shafie, Thahiri and Zaidi schools limit it to 40 lashes, but some of their scholars say that it is possible to increase that number if a person drinks repeatedly, or indicates his disdain for the punishment. Others, however, do not permit such increase.
It must be noted that the Qur’an, which categorically forbids intoxicants in all forms, does not specify any punishment for drinking. In fact, its prohibition in the Qur’an was gradual, taking four steps with the verse indicating the first step being revealed in Makkah and the last verses giving the final verdict revealed in Madinah, several years after the Prophet’s settlement there.
The first verse that mentions intoxication is in Surah 16, The Bee. It may be translated as follows: “From the fruit of the date-palms and vines you derive intoxicants and wholesome food. Surely in this there is a sign for people who use their reason.” (16: 67). The way this verse is phrased gives a clear indication that there is a wide gulf between intoxicants and other uses of grapes and dates. That this includes a sign for people using their reason adds more clarity to the nature of the difference between the two.
The second stage is indicated by Verse 219 in Surah 2, The Cow, which says: “They ask you about drinking and gambling. Say, ‘In both there is great evil although they have some benefit for people, but their evil far exceeds their benefit’.” This was followed by another verse in the Surah entitled Women, stating the following divine order: “Believers, do not attempt to pray when you are drunk, (but wait) until you know what you are saying.” (4: 43). Some people were quick to realize the import of these two verses and stopped drinking altogether, while others stopped drinking at any time close to a prayer time. However, this served to indicate a trend, leading to a final verdict. This verdict is outlined in two verses of Surah 5, The Repast: “Believers, intoxicants, games of chance, idolatrous practices and divining of arrows are abominations devised by Satan. Therefore, turn away from them so that you may be successful. Satan seeks only to stir up enmity and hatred among you by means of intoxicants and games of chance, and to turn you away from the remembrance of God and from prayers. Will you not, then, desist?” (5: 90-91)
This gradual prohibition takes care of the fact that most people in Arabia at the time habitually enjoyed a drink. It was part of their norms. Omar used to pray to God, saying: “My Lord, give us a clear verdict on wines.” This habitual attitude to intoxicants is what causes addiction. Both medical doctors and specialists in psychology tell us that breaking addiction is one of the hardest things people may attempt. It also requires a long time to ensure that a person who succeeds in breaking an addiction has finally made it through, and that he fears no reversion to what he was addicted to.
It is also well-established that the Prophet, and later his companions, administered different types of punishment to drunken people, and such punishment took at times the form of a mere beating up. It is reported that a drunken man was brought to the Prophet and he said: “Beat him up.” Abu Hurayrah reports: “Some of us beat him with our hands; others with their shoes, and others with their robes.” (Related by Al-Bukhari, Ahmad and Abu Dawood).
On other occasions, the Prophet ordered the verbal rebuke of a drunken person, or throwing dust on his face after beating him; but on other occasions he instructed his companions not to incur God’s curse on such a person, saying to them: “Do not help Satan against him.”
Such a variation of punishment is not possible unless the punishment itself is discretionary, allowing individual decisions to be made on what is the best course to apply in each case, hoping to reform the offender and persuade him to desist. Mandatory punishments, or hadd, do not vary in accordance with the special circumstances of the offenders. The same punishment is applied to all offenders committing a particular crime.
It is authentically reported that the number of lashes to be administered in punishment of a drunken person was determined in both cases of 40 and 80 by the Prophet’s companions after he had passed away. The sum up of the reports we have on this particular issue makes it conclusive that the Prophet’s companions felt that it was a discretionary punishment which is determined by the legislative authority as it feels fit in the prevailing circumstances.
This is confirmed by the well-reported statement by Ali, confirmed by Al-Bukhari, Muslim, Abu Dawood and Ibn Majah, quoting him as saying: “Should a person subjected to a mandatory punishment die as a result, that would give me no regret, except in the case of a drunken person. Should he die as a result of the punishment, I would order the payment of blood money to his family, because the Prophet had not defined his punishment.” This means that when the administration of a mandatory punishment results in the death of the offender, his family cannot apply for compensation from the treasury of the Muslim state, except in the case of punishing a drunken person, because it is not defined in a clear statement. It is established on the basis of scholarly effort.
Imam Ahmad, Abu Dawood and Al-Nassaie quote Abdullah ibn Abbas as saying: “God’s messenger had not defined a specific punishment for drinking.” Now it is well-known that any punishable offense for which no punishment has been specified is classified as having a discretionary punishment, not a mandatory one.
Mandatory punishment, or hadd, is limited to certain offenses for which punishment is defined in clear texts in the Qur’an or the Sunnah. No one may increase or reduce these punishments. Indeed no authority may totally or partially waive these punishments. Proof required for such offenses is clearly defined, so that the judge is able to establish the offense and its actual commitment by the accused. Once this has been properly established and punishment administered, there may be additional punishments concerning whether the offender is acceptable as a witness in a case of law, or suitable for public office. Furthermore, there may be some civil effects related to the offender’s family life and his or her suitability to have custody of children or be in a position of guardianship.
In all such matters, offenses carrying mandatory punishments are fundamentally different from those that carry discretionary punishments. Hence, when we classify an offense in the wrong category, we may be putting in place certain results and effects which God has not intended. We may also be looking at different things to be treated as perfectly equal, which is unacceptable in Fiqh.
Several penal laws and bills in Arab countries specify discretionary punishments for wine drinking or selling, such as Articles 206 & 206a, b, and c of the Kuwait Penal Law; the Libyan law of 1969, amended in 1973; a Sudanese bill drafted by the Technical Committee for Law Amendment in 1982, and others. This legislative trend is perfectly in line with the proper approach to the offense of drinking and its punishment. There is nothing wrong with following this line, as long as the law to be enforced is felt to be capable of achieving the desired result of combating wine drinking and its far reaching harmful effects on both the individual and the community.
