Narcotics legislation and Islam in Egypt
Author: Walter Herbert DIXON
Pages: 11 to 18
Creation Date: 1972/01/01
The connexion between narcotics legislation and Islam in Egypt is a special manifestation of the general relationship of public law to social behaviour and attitudes. In turn, with respect to narcotics consumption in Egypt, social mores are linked to popular ideas about Islam which conflict with true Islamic principles.
Although passing reference is sometimes made to Islam, the programmes put forth by Egyptian specialists in narcotics control do not usually give effect to religious ideas. Generally too, lawyers indicate that there is a complete separation between Egyptian criminal laws and Islamic Law - that the Sharia now has no notable effect on the criminal code. At the same time it is often observed that legislation is insufficient to deal with problems as intractable as narcotics consumption. On a broader level, it is often assumed that the public law of the transitional Muslim countries 1 is a practical, largely successful adaptation of European legal concepts to local circumstances. This thinking is criticized in the following pages because it is faulty per se and because it weakens the point d'appui for narcotics policy not only in Egypt, but in other Muslim countries.
Egyptian narcotics legislation is severe. Law No. 40 for the year 1966 provides that those who import or export narcotic drugs without a permit and those who illegally produce narcotic drugs for purposes of trade are subject to the death penalty and a fine ranging from 3,000 to 10,000 Egyptian pounds. The penalty of death or hard labour for life, and a fine from 3,000 to 10,000 pounds is stipulated by the same law for those who possess, obtain, buy, sell, receive, transport, or offer narcotic substances for commercial purposes. The identical penalty applies to anyone who cultivates narcotic plants or who imports, exports, obtains, buys, sells, delivers, or transports these plants or their seeds with the purpose of trade. Furthermore, the same penalty of either death or hard labour for life, and a fine within the range of 3,000 to 10,000 pounds applies to the offence of directing or establishing a place for illicit usage of narcotics. Anyone offering narcotic substances for consumption free of charge or facilitating their consumption, except under conditions allowed by law, is subject to the penalty of permanent hard labour, and a fine of 3,000 to 10,000 Egyptian pounds. 2
1. This phrase refers to countries with populations that are largely Muslim but which, although they attribute nominal importance to Islamic legal principles, have legal systems which are no longer essentially Islamic.
Lesser offences are also subject to severe penalties. For example, Law No. 182 of 1960 provides that anyone illicitly possessing, buying, or producing narcotic substances for personal use is to be punished by imprisonment for not less than six months and by a fine ranging from 500 to 3,000 Egyptian pounds. Anyone apprehended in a place prepared for the use of narcotics where narcotics were being consumed to his knowledge, is punishable by a prison sentence of up to one year, and a fine from 100 to 500 Egyptian pounds. 3
Despite the rigour of Egyptian legislation, the illegal consumption of narcotics seems to be on the increase in Egypt. 4This trend, if it continues, is a serious threat to Egypt because it constitutes a deterioration in an area that for some time has been a problem for Egyptian society. As in other countries with major narcotics difficulties, there has been considerable controversy in Egypt with respect to approaches and methods which might be effective in the struggle against the abuse of narcotics. Arguments that the police are unduly fettered and that court procedure is ineffective are matched by protestations to the effect that punishment does not prevent illicit narcotics usage, 5and that imprisonment does not have a curative or rehabilitative effect but rather often increases the tensions that motivate resort to drugs. With respect to the deterrent function, fear of punishment was given as the reason for abstention by only five per cent of the former regular users interviewed in a project undertaken by the National Centre for Social and Criminological Research to evaluate the effectiveness of Egyptian narcotics legislation. 6
2. The Narcotics Law of 1966 (Cairo: Lawyers' Syndicate, 1966) pp. 1-2. The combination of the fine of approximately $6,990 to $23,300 (the official exchange rate is $2.33 for one Egyptian pound) with the death penalty or life imprisonment is an effort to absorb the profits derived from the illegal traffic in narcotics.
3. Order of the President of the United Arab Republic of Law No. 182 for the Year 1960 (Cairo: The General Organization for Governmental Publications, 1967) pp. 1-2. This penalty is not applicable to the spouse, offspring or other relatives of the person arranging the place where the narcotics are consumed.
4. This is the position taken by Samir al-Ganzouri in his article " Drug Legislation in the UAR, " published in The National Review of Criminal Sciences, Part I, 1969.
5. For an elaboration of the point of view that social and psychological causes must be controlled see 'Anwar al-Amrusis' Narcotics: Effects, Crimes, and Penalties (Cairo: Al Khangui, 1955).
The general tendency is for Egyptian scholars to expound ideas consistent with those of Western academics such as the thesis that drug consumption is a result of tensions caused by frustration of the basic needs of the consumers, and that laws cannot deal with such serious social problems. Indeed, it is pointed out that the inevitable result of legislation aimed at the suppression of activities like the consumption of narcotics, if they are socially accepted, is to open a wide gap between the legislators and the people.
Most Muslims believe that Islam prohibits the consumption of alcohol, but public opinion in Egypt as well as in other Muslim countries is also of the view that the use of narcotics is not forbidden by the Islamic religion. The Egyptian National Centre for Social and Criminological Studies has conducted investigations which indicated that about 80 % of the hashish consumers interviewed believed that hashish is not prohibited by Islam. The same research made it clear that many drug users regularly perform their religious duties without perceiving any contradiction between the illegal consumption of narcotics and devotion to their faith. In the group studied, only 20 % of the users did not pray or fast. Forty-four per cent of them did so regularly, and the rest prayed and fasted irregularly. 7
Religion is important at the social level where narcotics consumption is most prevalent, but this sector of Egyptian society does not see narcotics laws as being supported by religious rules. The Egyptian public does not view the consumption of narcotics as irreligious or morally reprehensible, but regards the legislative criminal definition of narcotics consumption as an arbitrary act of the state.
An instructive parallel exists regarding alcohol, the consumption of which is legal in the eyes of the public law, but which is generally thought to be forbidden by the rules of Islamic Law. With respect to this juxtaposition, popular Islam rather than the criminal code has the stronger effect on the bulk of the Egyptian people. Alcohol is generally eschewed, except by some of the sophisticated, while the use of hashish is widely accepted, particularly, although not exclusively, in the lower strata of society. In Egypt, religion serves as a restraint regarding the use of alcohol, but for the most part does not do so with respect to narcotics.
6. This project is dealt with by Professor al-Ganzouri in his article, see note 4 above.
Professor al-Ganzouri has maintained that the ineffectiveness of narcotics laws in Egypt is largely due to the wide gap between the legal norm and the social reality of the public's attitude. He has written that with respect to narcotics consumption, Egyptian legislation has moved in a direction that does not agree with the conscience of the society as expressed in the beliefs of the people. 8
The idea that laws should be derived from the will of the people is indicative of a Western secular perspective. In the Islamic legal system, the Law emanates from God. Thus, in the basic sense there is a rule of Law rather than of the will of the people. In traditional Islamic countries the Sharia or Holy Law still is the primary theoretical nomothetic basis for the political and social arrangements ordering the society. Islamic society is organized according to God's Law and the Islamic state is the agent of the Law which has its origin in God's will, not in the will of the people.
Today most countries with largely Muslim populations have nevertheless moved with the contemporary tide in the direction of separation of the sphere of public law on the one hand, from that of religion and morality on the other. Still, it should be understood that the separation of law from morality and religion is a Western innovation which has spread throughout most of the world. This fragmentation is not consistent with Islamic legal theory, and it has had a social cost in that it has reduced the legitimacy of the public law.
When the state's laws are widely perceived by a generally devout population as being divorced from the teachings of their religion, the public law loses much of its force for them. Conversely, if the laws of the state are seen as being consistent with the principles of a widely accepted religion, those laws are likely to be generally accepted by the part of the population which is religious.
The proposition that legislation is inadequate in the face of serious social problems like illegal narcotics consumption assumes that the public law stands alone apart from the mores of the society. If legislation is simply an elaboration of provisions foreign to the values of a population, then such legislation alone certainly is insufficient with respect to the betterment of society.
However, anti-narcotics legislation in Muslim countries need not stand alone. There are Islamic principles which, if effectively articulated, might support the public law in this area. These religious principles, although known to Islamic scholars and to some responsible officials, 9 are not a part of popular religion in Egypt nor are they given sufficient attention by Egyptians concerned with narcotics abuse. It is with the proposition that Islamic principles are antithetical to the misuse of narcotics 10 that I now turn to the sources of Islamic Law.
9. Mr. Hassan Osman, the Chief Prosecutor for Narcotics Offences in Cairo, has advocated a co-ordinated effort to educate the Egyptian public with respect to the narcotics problem. Such a programme should in his view include reference to the principles of Islam and thorough utilization of the mass media.
The Quran contains four verses which are relevant. Sura two, verse 219 (al-Baqara) notes that intoxicants and gambling involve " great sin and some profit for men. The sin is greater than the profit. " 11
Sura four, verse forty-four (al-Nisa) commands that Muslims " Approach not prayers with a mind befogged, not until you can understand all that you say. " 12 The expression " with a mind befogged " prohibits intoxication at the time of prayer. The Quran not only commands the act of prayer, but calls for its performance with solemnity and a feeling for the majesty and glory of God. Consequently, the interdiction with respect to praying while intoxicated is motivated by the wish that Muslims remember God with clear minds not covered or veiled by an intoxicant. 13
Since a principal duty of Muslims is to pray at regular intervals five times a day, the prohibition of prayer while under the influence of an intoxicant makes the use of narcotics impracticable except after the last prayer of the day. Still, this command does not absolutely forbid all consumption of narcotics since after the evening prayer intoxication would not interfere with prayer.
In sura five, verse 90 (al-Maida) Muslims are addressed as follows:
Oh you who believe! Intoxicants and gambling, dedication of stones, and devination by arrows are an abomination of Satan's handiwork. Eschew such abominations that you may prosper. 14
The next verse of the same sura states that
Satan's plan is to excite enmity and hatred among you with intoxicants and gambling, and to hinder you from the remembrance of God and from prayer. Will you not then abstain? 15
Verse 90 of sura five places intoxicants in the same category as the idolatrous and heathen practices of the pre-Islamic era. The last line of verse 91 of sura five, according to Makhluf's explanation of the Quran, indicates a sharply asserted prohibition of such practices with special reference to intoxicants and gambling. 16
10. The non-medical, non-scientific use of narcotics is referred to as " misuse ", " abuse " or " consumption " throughout this article.
11. The Holy Quran with Explanations of the Quranic Meanings. Commentary by Hasanin Muhammad Makhluf (Cairo: The Arabic Book Press and Hassan al-Sharbatli and Sons, 1956) p. 71.
12. Ibid., p. 151.
13. Muhammad Rashid Rida, Explanation of the Quran Regarding the Hakim of Islam and the Way that Muhammad Abduh Taught in al-Azhar (Tafsir al-Quran al-Hakim) (Cairo: no publisher given, 1325 A. H.) Vol. V, p. 113.
14. The Quran with Makhluf's Commentary, p. 205.
Unlike the representations of suras two and four (al-Baqara and al-Nisa), sura five (al-Maida) takes a strict and uncompromising view of the consumption of intoxicants. Sura fire's linkage of intoxicants with paganism has been interpreted to mean that " the devotee of intoxicants is like the idol worshipper ". 17 This categorization, if accepted, would mean that a regular user of intoxicants would be an object of the jihad, and subject to a possible death penalty.
Less draconian, but still very serious is the view of Ibn Hazm that
Whoever prays under the weight of such abominations (as intoxicants, gambling, and heathen practices), his prayer is not accepted .... Whoever does not pray as he was commanded, has not prayed rightly (is not considered to have prayed at all). 18
A controversial element in this exposition is the meaning which has been ascribed to the Arabic word khamr which has been given above as " intoxicants ". Khamr is the term most widely used not only in the Quran, but also in the traditions of the Prophet and his Companions, and in the opinions of Muslim legal scholars with respect to the topic of intoxicants and intoxication. This noun is derived from the verb khamara which means to cover, hide, or conceal so it makes sense to view the noun as indicating a substance that has the effect of covering or veiling the mind. This is in fact the definition of Bukhar who has written that " al-khamr ma khamara al-aql-khamr is what covers or confuses the mind ". 19
This wide use of the term to include all intoxicants is accepted by three of the four schools of Islamic Law, but in popular usage khamr is usually translated as wine and khumur, its plural, is typically taken to mean liquor or alcoholic beverages. Khamr is also sometimes considered by laymen to have the latter, more general meaning. The point to be emphasized here is that Islamic Law does not generally restrict the term khamr so narrowly as even the wider popular connotation.
There exist numerous ahadith, formal traditions derived from the statements and actions of the Prophet, which support this interpretation. These traditions, which constitute accepted reports by witnesses of the words and acts of the Apostle of God, were transmitted by an uninterrupted chain of trustworthy persons until collected and recorded by Muslim scholars. 20 An accepted or true hadith is a primary source of Islamic Law which is used to clarify and explain the meaning of the Quran, -or in some instances to deal with a matter not touched upon by the Quran.
17. Rashid Rida, Tafsir. Vol. VII, p. 63.
18. Ibn Hazm, Al-Muhalla (Beirut: The Commercial Office of Printing and Publishing, no date) Shakir edition. Vol. I, p. 191.
19. Al-Bukhari's Sahih As explained by al-Karamani (Cairo: The Egyptian Press and Muhammad M. Abdul Latif, 1933). First Edition, Vols. 9-10, p. 141.
20. Joseph Schacht, An Introduction to Islamic Law (Oxford: At the Clarendon Press, 1964) p. 34.
The hadith that the Prophet said " every intoxicant is khamr and every intoxicant is forbidden " is quoted several times in Muslim's Sahih. 21Al Shafii writes that Malik related that Umar said exactly the same thing. 22Ibn Hazm, the leading writer on Zahiri legal ideas, 23also declared that the Prophet said " every intoxicant is khamr " 24 and " every intoxicant is forbidden ". 25 Rashid Rida states that Bukhari, Abu Dawud, Tirmidhi, and Nasai also relate the hadith affirming that " every intoxicant is khamr ". 26
Modern scholars have taken the same position. Ahmad al-Sharabasi, a professor at al-Azhar, has described the hadith stating that every intoxicant is khamr and every khamr is forbidden as " famous ", 27 and in his commentary on the Quran, Hasanin Muhammad Makhluf repeats the " correct hadith (providing that) every intoxicant is khamr ". 28 Finally, the Mufti of Egypt, Shaykh Muhammad Khatir, has also remarked upon the " well-known hadith " according to which the Prophet said that every intoxicant is khamr and every khamr is forbidden. 29
The main stream of Muslim jurisprudence accepts the use of the word khamr to embrace anything the taking of which leads to confusion of the mind and corruption of its faculties of reason and perception. Sunni Muslims adhering to the Shafli, Maliki, or Hanbali Schools of Law are theoretically bound to abstain from the consumption of any intoxicant because those schools teach that Islam prohibits the use under ordinary circumstances 30 of any intoxicant. This absolute prohibition of consumption of intoxicants is based on Quranic passages, ahadith such as those already cited, and other traditions which support the basic position that every intoxicant is forbidden.
21. Muslim was a famous collector of traditions and his Sahih is one of six collections of ahadith accepted as authoritative by Sunni Muslims. See Muslim's Sahih as Explained by al-Nawawi (Cairo: Al-Azhar Press and Muhammad M. Abdul Latif, 1929) First Edition, Vols. 13-14, pp. 149 and 171.
22. Musnad al-Shafii (Cairo: The Islamic Cultural Center, 1950) edited by Muhammed Zahir ibn al-Hassan al-Kawthari. Vol. One, Chap. four, p. 92. A1-Shafii and Malik founded Schools of Law. Umar was the second caliph and a close companion of the Prophet.
23. The Zahiri School of Law was based on the principle that the only true bases for Islamic Law were the literal meaning of the Quran and the traditions of the Prophet.
24. Ibn Hazm, Al-Muhalla (Beirut: The Commercial Office of Printing and Publishing, no date) Vol. VII, pp. 479 and 484.
25. Ibid., pp. 481-482 and 499.
26. Muhammad Rashid Rida , Explanation of the Quran Regarding The Hakim of Islam and the Way that Muhammad Abduh Taught in al-Azhar (Tafsir al-Quran al-Hakim) (Cairo: No publisher given, 1325 A. H.) Vol. II, p. 331. Bukhari, Abu Dawud, Tirmidhi and Nasai are four of the six traditionalists whose works are accepted by Sunni Muslims as authoritative.
27. Ahmad al-Sharabasi, They Ask You About Life and Religion (Beirut: Dar al-Ra id al-Arabi, no date given) p. 58.
28. The Holy Quran with Makhluf's Explanations, p. 72.
29. Interview with Shaykh Muhammad Khatir, December 5, 1971.
30. Medical or scientific usage would not be forbidden.
A significant group of ahadith which backs up the point of view of the three schools of law mentioned above asserts that " what intoxicates in large amounts is forbidden in small quantities ". This maxim is accepted by such authorities as Ibn Hazm, 31al-Shafii, 32Abu Dawud, 33al-Sharabasi, 34and the Mufti of Egypt, Shaykh Muhammad khatir. 35
This line of thought is contested by the Hanafi School of Law which defines khamr very narrowly 36thus placing an absolute prohibition on only a few intoxicants. With respect to other intoxicating substances, the Hanafis forbid intoxication rather than simply prohibiting all consumption.
A number of arguments have been used against the Hanafi doctrine regarding the use of intoxicants. Liter-alistic approaches are based on strict adherence to the letter of the Quranic passages and traditions referred to previously. Similarly, the bases of the Hanafi posture are criticized on legalistic grounds. Historical expositions deal with the way that terms such as khamr were used and understood in early Islamic times. Finally, analogy and systematic reasoning are applied.
An example of literalism appears in Ibn Taymiyya's statement that since the Prophet explained that all intoxicants are khamr, what God meant was clear. Therefore, in Ibn Taymiyya's view " whether the Arabs had used the term khamr for every intoxicant before... or not is not necessary to indicate. 37
Ibn Hazm criticized the traditions " Drink and do not be drunk " and " Drink but if you fear do not ", which support the Hanafi doctrine that intoxication rather than the use of all intoxicants is prohibited by Islam. Ibn Hazm maintained that " both have nothing of the truth because they had no proof. The transmitters in the middle are unknown ". 38
Rashid Rida advances an historical argument when he notes that Muhammad Abduh taught that
The companions (of the Prophet), real Arabs, understood that prohibition of al-khamr as the prohibition of every intoxicant. 39
31. Ibn Hazm, Al-Muhalla, Vol. VII, p. 500.
32. Musnad al-Shafii, Vol. One, Chap. Four, p. 92.
33. See Rashid Rida's Tafsir, Volume II, p. 331.
34. Al-Sharabasi's They Ask You About Life and Religion, p. 460.
35. Interview of December 5, 1971.
36. The Hanafis hold that the term khamr applies only to alcoholic drinks made from grapes and even this is not absolute since the Hanafis exclude liquids which have been boiled until two-thirds of the original quantity has evaporated from the prohibition on khamr.
37. Ibn Taymiyya, Min Fatawi Ibn Taymiyya (Riyad: Al-Riyad Press, 1376 A.H.) p. 34.
38. Ibn Hazm, Al-Muhalla. Vol. VII, pp. 481-482. The phrase " if you fear " means, in Ibn Hazm's opinion, " if you fear that drinking will lead to intoxication ".
39. Rashid Rida, Tafsir. Vol. II, p. 331.
As far as Rashid Rida was concerned, this demonstrated the falsity of the Hanafi claim that at the time of the Prophet the Arabs used the term khamr for a certain kind of intoxicant and not for others, and that therefore intoxicants other than khamr could be used. 40
Making the same point, Ibn Hazm relates a statement by Umar to the effect that when khamr was prohibited, there were five liquids in Madina that were called khamr, including the khamr of grapes. Khamr was then made from grapes, dates, wheat, barley, or molasses. 41
As for reasoning with respect to the matter of intoxicants and intoxication, Abdul Wahab Khallaf has written that the basis for the prohibition of khamr is the avoidance of intoxication. 42The same reason has been given attention by al-Nawawi as the following passage indicates:
God indicated that the reason for prohibiting khamr is that it prevents one from remembering Him and from prayer. This reason is found in all intoxicants... if it is said that the meaning is only for intoxication... we say that the prohibition of (fermented) grape juice is generally agreed upon even if it does not intoxicate in each case, and God gave the reason for its prohibition as indicated. So if other substances have the same effect they must all be rejected, and prohibition becomes applicable to the category of that which is of an intoxicating nature. 43
Shaykh Mahmud Shaltut, a former Shaykh of al-Azhar, also emphasized the reason for the prohibition of khamr. He is of the view that
When Islam prohibited khamr... it looked to the effect it has in making the mind of the consumer absent (removing his reason) which spoils his humanity and the honoured place given him by God. 44
The fact that cooking alone does not necessarily purify or legitimize an intoxicant is made clear by Ibn Hazm who writes
We saw grapes in Algeria that were cooked until three-fourths of the preparation evaporated and it was still an intoxicant as it had been before. So there is no doubt that this is a forbidden thing. 45
41. Ibn Hazm, Al Muhalla. Vol. VII, pp. 484 and 503.
42. Abdul Wahab Khallaf, Al Ijtihad bi al-Ray (Cairo: The Arabic Press, 1950) p. 33. Khallaf actually takes an intermediate view between that of the Hanafis and those who define Khamr as " all intoxicants ". He states that drinking khamr is an asl (root) because there is a text prohibiting it, the reason for the prohibition being the avoidance of intoxication. He goes on to say that prohibition of other intoxicants is a far (branch) if there is no explicit text referring to them. Therefore, he accepts a narrow definition of khamr, but by the use of qiyas (a kind of analogy) concludes that all intoxicants are prohibited by Islamic Law.
43. Muslim's Sahih as Explained by al-Nawawi. Vols. 13-14, p. 148.
44. Shaykh Mahmud Shaltut, Al-Fatawi: A Study of the Daily and Practical Problems of the Modern Muslim (Cairo: Dar al-Qalam, ca. 1964) p. 371.
45. Ibn Hazm, Al-Muhalla. Vol. VII, p. 498.
The reasoning behind this conclusion might be used against the Hanafi doctrine that the prohibition attached to khamr is removed if an alcoholic liquid derived from grapes is boiled until two-thirds of it evaporates. 46It could also be applied to contest the popular notion that smoking narcotic substances is permissible because " the flame purifies ".
The difficulty of determining the point at which intoxication occurs is a fact which weakens the Hanafi distinction between the use of intoxicants and intoxication. Ibn Hazm raises this question when he writes
Prohibition is on the fluid itself, not on the last cup that some may think is the intoxicating part... because the last one is not necessarily the one that caused the state of intoxication. 47
This statement might be taken as an indication of the difficulty of subjectively determining the existence of a state of intoxication by observation, or it could be taken as evidence that Ibn Hazm was aware of the cumulative nature of inebriation. Contrary to Hanafi doctrine and popular sophistication, the condition of intoxication is not logically separable from consumption of an intoxicant because an intoxicating substance begins to take effect after its introduction into the body even if no noticeable symptoms of intoxication are evident. Although the effects may be slight and manifestations controlled or suppressed, the use of an intoxicant means that the body and mind are affected to some extent by it. The question becomes one of degree.
Since the Shafiis, Malikis, and Hanbalis forbid the use of any intoxicant and the Hanafis, despite their toleration of the consumption of most intoxicants, completely ban intoxication, all orthodox Muslim religious authorities agree that a condition of stupor or exhilaration induced by consumption of any substance which affects the mind is prohibited by Islam.
It would seem to follow that the Hanafi School of Law can tolerate the consumption of narcotics only if no state of stupor or exhilaration is induced by the narcotic substance. The other three orthodox schools prohibit the use of narcotics except for medical or scientific purposes. 48
46. However, the free use of reasoning is not permitted by Islamic Law.
47. Ibn Hazm, Al-Muhalla, Vol. VII, p. 501.
48. The Mufti of Egypt has stressed that the true hadith "every intoxicant is khamr and every khamr is forbidden" expressly prohibits the use of narcotics. However, medical and scientific uses are permitted because Islamic Law, through the doctrines of istihsan and istislah, provides means to attain socially desirable results and to further the public interest.
Muslim scholars also stress the harm which narcotics abuse does to the individual and the society. Shaykh Shaltut notes the " physical, mental, moral, economic, spiritual, and social harms " of hashish, opium, and cocaine in his explanation of their prohibition by Islam. 49He states that narcotics were prohibited not only because of their effect on the individual, but because of the need to protect society. In this view, hashish and opium " corrupt the mind, they prevent the mentioning of God and prayer ". 50 Narcotics abuse " drives man away from his humanity (human essence) " 51 and takes away his dignity and virtue " making him insincere, unfaithful, a liar, and killing in him the feeling of responsibility so that he becomes a bad member of society ". 52
Mahmud Shaltut's emphasis on social considerations has been supplemented by other Muslim scholars' attention to the effect of narcotics consumption on the individual, 53and their reiteration of the fact that Islam does not allow the consumption of harmful substances. 54
Muslim legal authorities indicate that physical force should be used against those who transgress the rules of Islam regarding intoxicants. Ibn Hazm relates, with a list of transmitters, the hadith that when the Prophet was asked about an intoxicating drink used " for strength in work and in cold ", he said " Avoid it. " When told " Our people will not quit it, " he responded " If they do not quit it, fight them. " 55
This was the Prophet's reaction to the obstinacy of a sizeable number of people who as a group insisted upon continuing to use an intoxicant. Chastisement of individuals who use intoxicants is also called for in various ahadith. As for the punishment specified, Abu Yusuf states that it was related that it had been agreed that eighty lashes were called for in the case of " the use of khamr, whether a lot or just a little ". 56Al-Shafii confirms that it was decided that the punishment for using khamr should be eighty lashes. 57Similarly, Abu Hanifa relates that the Prophet ordered the flogging of a man " who was high and his mind was gone ". 58 After the offender had received eighty lashes, the Prophet admonished the offender's uncle for not bringing his nephew up correctly. 5949
Shaltut, Al-Fatawi, p. 372. Shaltut, however, does not include narcotics within his definition of khamr. He does say that they are even more harmful than khamr and are therefore prohibited by the Sharia.
51. Ibid., p. 375.
52. Ibid., p. 372.
53. For example, in 1940 the Dar al-Ifta issued a fatwa stating that drug taking was prohibited because it led to spoiling the minds and destroying the bodies of users.
54. For this principle see Ibn Hazm's Muhalla (Shakir edition) Vol. VII, p. 418, and al-Sharabasi's They Ask You on Life and Religion, p. 464. Al-Sharabasi states that even tobacco is prohibited if it causes physical harm to the smoker or costs the smoker money that he needs for his wife, family or necessities.
55. Ibn Hazm, Al-Muhalla, Vol. VII, p. 499.
56. Abu Yusuf, Kitab al-Kharaj (Cairo: The Salafia Press, A.H. 1346) p. 196. Here Abu Yusuf accepts a narrow, although undefined, usage of the term khamr. However, he writes that eighty lashes also were to be given to anyone " drunkwithout (having used) khamr ".
57. Al-Shafii's Musnad, edited by al-Kawthari. Vol. One, Chap. Four, p. 90.
58. Abu Hanifa, Kitab Musnad al-Akhbar (Cairo: The Scientific Publications Company, 1909), p. 31.
According to al-Shafii, repetition of the use of intoxicants led after a number of offences to the death penalty, but the ahadith presented by al-Shafii are unclear on the question of when execution was to be carried out. In this Kitab al-Umm, al-Shafii wrote that it was related that the Prophet said that the first three offences should be punished by whipping, and the fourth by death, but in the same place al-Shafii notes that the practice of the Prophet was to enforce the death penalty when " the man was brought for the third time ". 60 In the Musnad, al-Shafii asserted that the Apostle of God said that the first four offences should be punished by flogging and the fifth by execution, but again the practice of the Prophet was indicated to have been execution after the third offence. 61At any rate, the death penalty was specified in these traditions with regard to those who repeatedly used khamr. Moreover, according to al-Shafii, " there is no disagreement on this among the men of knowledge ". 62
Since in Islam social and religious elements are interwoven, the principle of the death penalty might be explained as an effort to protect society from the corruption which was seen by Muslim scholars to result from the use of intoxicants, and at the same time it could be viewed as a policy of eliminating those who refused to heed the word of God. Thus, Shaltut quotes Ibn Taymiyya to the effect that the corruption attached to narcotics makes them most deserving of prohibition, and that anyone who claims that narcotics are permitted by Islam should repent or he killed as an atheist. 63
Ibn Hazm takes the same basic view when he writes
If we find a man who had no idea about the prohibition of khamr we do not consider him an atheist if he uses it until the news (of the prohibition) reaches him, but if he insists on contradicting the Prophet (after he hears of the prohibition) he is an atheist. 64
60. Al-Shafii's Kitab al-Umm, edited by Al-Rabi Ibn Sulayman al-Muradi (Cairo: The Egyptian Press, 1324 A. H.) p. 130. Al-Shafii gives two lists of transmitters who attested to the validity of this hadith.
61. Al-Shafii's Musnad, edited by Shaykh Muhammad Zahir Ibn al-Hassan al-Kawthari (Cairo: The Islamic Cultural Center, 1950) Vol. One, Chap. Four, p. 89.
62. Al-Shafii's Kitab al-Umm, Muradi edition, p. 130.
63. Shaltut, Al-Fatawi, p. 372. Ibn Taymiyya distinguishes between khamr and narcotics in this passage, but holds that narcotics are more deserving of prohibition than khamr narrowly defined because " there are corruptions in them which are not in khamr ".
64. Ibn Hazm, Al-Muhalla, Vol. VII, p. 484.
The association of the use of narcotics with atheism, which is implied by sura five and made explicit by Ibn Taymiyya and Ibn Hazm, is more serious than the death penalty set forth in the ahadith for repeated use of khamr because the atheist is to be killed immediately unless he accepts God and submits to His will. Moreover, the atheist must face God's wrath after death.
This discussion has thus far been concerned largely with the use of intoxicants including narcotics. It should be pointed out that Islamic Law also prohibits trade in khamr. 65 Ibn Hazm, after enunciating the principle " if a lot of a substance intoxicates, a little of it is forbidden ", stated that even a drop of such a substance could not be owned, sold or consumed. 66He also wrote that
God has prohibited swine, khamr, dead meat, and blood so the ownership, consumption, profiteering, and sale of all these is prohibited. 67
Finally, Ibn Hazm related a tradition that stated that " the Apostle went out and prohibited trade in khamr 68. " This tradition is also related by Muslim, 69who gives still another list of transmitters supporting the hadith that the Prophet said that God explicitly prohibited the selling of khamr. Elsewhere Muslim's Sahih again indicates that the prohibition of khamr meant that it should not be consumed or sold. 70
Systematic reasoning could also have indicated that any trade in intoxicants was contrary to Islamic principles.
The orthodox schools of law agree that Islam calls for the avoidance of intoxication, but the trade in intoxicants encourages the use of intoxicants, and the use of intoxicants certainly leads to at least some intoxication. Therefore, the sale of intoxicating substances by Muslims is in contravention of the principle of Islamic Law that any intoxication should not only be discouraged but prevented. Furthermore, there are traditions which specify punishments for those who deal in intoxicants. 71
Beyond this, the idea of collective punishment for those involved with a group which has used intoxicants is set forth in al-Shafii's comment that
We do not punish anyone unless he says " I consumed what intoxicates " or if he imbibes with a group and some of them become intoxicated which proves that it was an intoxicant. 72
65. See Joseph de Somogyi's article " Trade in the Quran and Hadith " in The Muslim World. Vol. LII, No. 2. April 1962, p. 111. However, de Somogyi uses the term " wine " rather than " khamr ".
66. Ibn Hazm, Al-Muhalla, Vol. VII, p. 478. Ibn Hazm states here that Shafii, Malik, and Ahmad Ibn Hanbal agreed on this point.
67. Ibid., Vol. IX, p. 8. Possibly the term profiteering is included to cover barter.
68. Ibid., On the same page an additional list of transmitters is given to support the saying of the Prophet that the sale of khamr was prohibited by God.
69. Muslim's Sahih as Explained by Al-Nawawi, Vols. 11-12, p. 5.
70. Ibid., p. 2.
71. For example, Ibn Hazm relates that Umar the second caliph ordered that all the possessions of a man who had become wealthy by trading in khamr be destroyed or confiscated, and that he be denied shelter by everyone. See Al-Muhalla, Vol. IX, p. 8.
72. Al-Shafii's Kitab al-Umm. Muradi edition, p. 130.
The Sharia principles of collective punishment, confiscation, and the death penalty are reflected in the modern Egyptian laws relating to narcotics abuse and the illegal traffic in drugs. While generally unrecognized and unintentional, this parallel is instructive. Besides illustrating the survival of Islamic principles in a largely secularized legal system and indicating that the gap between the Sharia and Egyptian criminal law is not so clear-cut as many have thought, the interfuse of Islamic Law and modern legislation points to a fault in the secularist view that the Egyptian narcotics laws are wrong because they are not consistent with the will of the people.
Islam is a basic and vital part of the consciousness of most of the Egyptian people and tolerance of drug abuse, despite widespread misconceptions to the contrary, violates true Islamic Law. Since elements of the public law which are consistent with Islamic legal principles must be accepted by all good Muslims, the popular bias against anti-narcotics laws might be eliminated or at least weakened if the present popular attitude of acceptance of narcotics consumption were stripped of the presumption of religious validity.
Attempts to communicate to the population of a developing country like Egypt the dangers posed for the individual and society by narcotics abuse face obstacles grounded in traditional attitudes which cannot be dismissed as simply ignorant or obscurantist for these popular inclinations are in large measure a manifestation of a sense of hopelessness and world-weariness. Corrective efforts therefore need to deal with the spiritual and moral issues which are fundamental to man's existence. Drug abuse is a problem with very deep roots; to deal with it we must go deeper. The impulses which move Muslims to use drugs could possibly be positively reoriented through and toward Islamic principles.
It is a Western or Westernizing notion to maintain that laws need to be consistent with the behaviour of the people, but effective laws in all societies must be in accordance with the cultural, social, or religious conscience of the population so that the public law is considered to be right and just. The public law, if it is not fully in line with what is done, needs to be acceptable as what ought to be done. For this reason Egyptian secularists have gone too far in their wide legal reforms. A more eclectic approach would have left the public law with more legitimacy in the eyes of most of the population. Thus, even from a secular perspective, a resurrection of Islamic principles is desirable in problem areas like that of drug abuse. On the other hand, continued broad-gauged secularization at full throttle is likely to contribute to the tensions and confusions which lead to drug abuse.
The American and European experience with drugs has certainly demonstrated that economic deprivation and social disadvantage are only partly responsible for the resort to narcotics. Egyptian and other Muslim legislators, officials, and scholars would consequently be wise not to give all their attention to the material aspects of the problem. On the contrary, they could provide an example for others by combining the spiritual with the physical in their narcotics policies.
On the practical side of things, in Egypt as well as on other Muslim countries there exists strong social pressure for conformity with what is considered to be proper behaviour accompanied by a significant individual fear of social ostracism. Here there are connexions with Islam which might be triggered to interrupt the present inertia which supports narcotics abuse.
Islam is a positive faith which teaches that Muslims belong to a religious community, and that all Muslims share responsibility for the welfare of that community. Regarding the subject of deterrence, laws and rules are obeyed if they command respect. Respect for the law may in turn be based on sympathy with its objectives on fear of punishment. The former is linked to matters of conscience, conviction, and social concern while the latter is tied to what is feared.
Islam operates in these areas more effectively than the criminal law 73of the state because it touches the deepest emotions of the people and is bound up with morality, with the essence of what is thought to be right and good. Islam also evokes for the believer the threat of ultimate, absolute, and unavoidable punishment after death. While there is evidence that fear of punishment by the state does not significantly discourage the consumption of narcotics in Egypt, a devout Muslim will not discount the wrath of God. 74
Much could be done with the ideas outlined in the previous pages. First they should be discussed and validated. Then a strategy for applying these thoughts and testing the hypotheses implicit in them should be formulated. Both steps, however, are outside the scope of this exposition.
The author wishes to thank the American University and the American Research Centre in Cairo for their support and encouragement.
73. It has already been noted that this is indicated by the fact that, while the great majority of the Egyptian population will not drink alcohol despite the legitimacy of this in the eyes of the state, a large part of the Egyptian population accepts the use of narcotics, despite the severity of the anti-narcotics legislation, in the belief that Islam does not prohibit narcotics.
74. The popular misconception about Islam's view of narcotics could very well have originated out of an effort to escape from the fear of violating God's will.